Xref: utcsri can.legal:3024 Path: utcsri!utnut!torn!nntp.cs.ubc.ca!hookup!quartz.ucs.ualberta.ca!unixg.ubc.ca!mathew From: mathew@unixg.ubc.ca (Mathew Englander) Newsgroups: can.legal Subject: Re: Enforcing Judgements in Other Countries Date: 5 Oct 1994 07:43:48 GMT Organization: none Lines: 125 Message-ID: <36tlfk$5a@nnrp.ucs.ubc.ca> References: NNTP-Posting-Host: unixg.ubc.ca In article , Jeff Connel wrote: >Let me get this straight. You are saying some fruitloop in the UK can >go to a UK court with a piece of paper copied off USenet and sue >someone in Canada for libel - someone who probably can't afford to go >to the UK to challenge this suit - and then get a subsequent order >for damages enforced by Canadian authorities? > >I find this very hard to believe. > The following is a posting I made several months ago to a few newsgroups, though not can.legal: From mathew@unixg.ubc.ca Sun Dec 12 06:16:39 1993 ~Date: Sun, 12 Dec 93 05:38:56 PST ~From: Mathew Englander ~Subject: Re: Laurence Godfrey and Jurisdiction The contents of this article, and any other originated by me, do not constitute legal advice. That said, I'd like to point out that I just noticed this thread on soc.culture.canada and there appears to be a fair bit of animosity among the participants. I really don't care about that; I have no idea who's threatened to sue whom and how come. What I am interested in is the legal point about jurisdiction. In article <092302Z08121993@anon.penet.fi>, wrote: [Quoting the Convention btwn Canada and the U.K. providing for the reciprocal recognition and enforcement of judgments in civil and commercial matters] >Article 5 of the Convention reads: >(1) For the purposes of Article IV (1) (c) the original court shall be >regarded as having jurisdiction if [...] >(f) the jurisdiction of the original court is otherwise recognised by the >registering court. >(excerpt ends) > >This means that Laurence has indeed been misleading us and his victims >as to the nature of these reciprocal agreements; in fact, jurisdiction >is for the purposes of Godfrey's claim, only recognised if the >defendent him or herself recognises the jurisdiction of the court and >participates in the proceedings. No. The Convention, and especially Article V(1)(f), must be interpreted in light of the Supreme Court of Canada's decision in De Savoye v. Morguard Investments, [1990] 3 S.C.R. 1077, 76 D.L.R. (4th) 256. This case revolutionized the question of jurisdiction in Canadian conflicts of laws. The facts of the Morguard case dealt with a company trying to enforce a default judgment from an Alberta court against the defendant who now lived in B.C. Before 1990, such a judgment would not have been enforceable outside Alberta, unless the defendant had either been served in Alberta or attorned (i.e. submitted) to the Alberta court's jurisdiction. In Morguard, the Supreme Court of Canada changed all this, and said that a default judgment from one province *can* be enforced in another province, as long as there was a "real and substantial connection" between the subject matter and the original province that took jurisdiction. Of course, on its facts the case was confined to recognition of judgments between Canadian provinces. However, lower courts have applied the principle to judgments from other countries. In particular, the Ontario Court of Justice, General Division, has applied the Morguard principle to the Canada-U.K. Convention quoted above: see Fabrelle Wallcoverings & Textiles Ltd. v. North American Decorative Products Inc. (1992), 6 C.P.C. (3d) 170. In the Fabrelle case, a Canadian company was sued by a British company, in England, for breach of contract. The English company obtained a default judgment for some 120,000 pounds. The Canadian company did not defend the action, and had never submitted or agreed to submit to the jurisdiction of the English court. However, the Ontario court decided that because the litigation had a "real and substantial connection" to England, the English court took jurisdiction appropriately, and the judgment should be enforced in Ontario. For an appeal-court-level decision that applied the Morguard principle to a non-Canadian judgment, see Moses v. Shore Boat Builders, judgment filed Sept. 28, 1993 (unrep.), Vancouver registry CA015661 (B.C.C.A.). > If the schools etc he is suing refuse >to attend the proceedings or otherwise agree to them, they are not >binding. That is an incorrect statement of law, as the Fabrelle case shows. The reason that Article V(1)(f) is so important is that the Morguard principle provides a way for a Canadian court to "otherwise recognise[]" the jurisdiction of an English court. (Though ironically, it wouldn't work the other way around.) In some sense, the Convention itself is obsolete, because if Morguard does apply to judgments from outside Canada, as lower courts have consistently held, then a foreign judgment can be enforced in Canada regardless of any statutory or treaty framework -- if the original court met the "real and substantial connection" test when it took jurisdiction. > Further British libel law 21-15 states that it is an acceptable >defence to argue that the publication was made abroad and is not >actionable in that country. This of course brings up the question that gets asked on Usenet, oh, every five minutes: is a newsgroup posting a publication? The answer: nobody will know until the courts decide. But I would hazard to say that if it is a publication, it is a publication everywhere in the world that Usenet reaches, not just in the jurisdiction where the article was originally keyed in. However, I really don't know very much about defamation law. >Either Laurence has been purposely decietful or his lawyer hasn't read >the laws and conventions in question. Good lawyers read much more than laws and conventions: they read the case-law. And here, the case-law suggests that Canadian defendants should take it very seriously when they get sued in foreign countries, because otherwise the judgment may be enforced against them in Canada. Mathew Englander . -- ----------------------------------------------------------------------------- Mathew Englander mathew@unixg.ubc.ca _____________________________________________________________________________ From mckronby@inforamp.net Mon Jan 29 00:35:57 1996 Xref: elastic can.legal:5852 Path: elastic!exorcist!lethe!geac!herboid!whome!light-house!innuendo.tlug.org!clio.trends.ca!worldlinx.com!coranto.ucs.mun.ca!hookup!news.nstn.ca!inforamp.net!ts9-14 From: mckronby@inforamp.net (malcolm c. kronby) Newsgroups: can.legal Subject: Children's conduct and support entitlement: OFLB Jan.'96 - jan96.dos [01/01] Date: 19 Jan 1996 01:44:45 GMT Organization: kronby Lines: 195 Message-ID: <4dmt2d$7tk@sam.inforamp.net> NNTP-Posting-Host: ts9-14.tor.inforamp.net Summary: Efeect of children's conduct on their entitlement to support in action against parents. Plus digest of recent decisions. Keywords: children's conduct support enititlement Ontario family law bulletin To: All X-Newsreader: News Xpress Version 1.0 Beta #3 BEGIN -- Cut Here -- cut here ONTARIO FAMILY LAW BULLETIN JANUARY, 1996 The Bulletin is on the Web, courtesy of Osgoode Hall Law School: http://www.yorku.ca/faculty/osgoode/fambull/oflbhome.htm on CompuServe, Legal Forum, Library Section, Law & The Family; and on newsgroups misc.legal.moderated and can.legal. E-mail addresses are: Malcolm C. Kronby 73744.445@compuserve.com, or mckronby@inforamp.net, or mkronby@mcbinch.com Jeffery Wilson 76132.516@compuserve.com Andrew Freedman 102033.624@compuserve.com ****** CHILDREN, THEIR CONDUCT AND SUPPORT ENTITLEMENT A recent decision of Judge Andre L. Guay of the Ontario Provincial Division in Sudbury tackles the continuing problem of the conduct of the older child as a factor that appears to be relevant to support entitlement. It may strike the reader as somewhat peculiar that, while under the federal Divorce Act or the provincial Family Law Act, conduct as related to spousal support entitlement is applicable only in the most exceptional of circumstances, it is currently unfolding as an area of jurisprudence unto itself in respect of the older child who goes to court and asks a parent to contribute to her support. Conduct should certainly play no part in the quantum assessment. It is nowhere mentioned nor suggested in section 33(9) of the Family Law Act which attempts to codify the circumstances for the court's review in assigning the amount of support payable. But, it seems to come before the court as a result of section 31(2) of the Family Law Act. In Ontario, every parent has an obligation under section 31(1) of the same Act, to provide support, in accordance with need, for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. But section 31(2) provides an out. It stipulates that the "... obligation does not extend to a child who is sixteen years of age or older and has withdrawn from parental control." And, applying this section, Ontario courts have ruled: - support for an "adult child" in grades 10 and 11 should not continue where there is inadequate school performance: see Figueiredo (1991) 33 R.F.L. (3d) 72 (Ont. Gen.Div.); - support for a 22 year old daughter should stop where the child refuses to entertain any relationship with her payer father: see Law (1986) 2 R.F.L. (3d) 458 (Ont. H.C.); - support for a 20-year-old female child should be terminated where she spends the academic year of almost 9 months sharing an apartment with her boyfriend in Toronto and lives with her mother in the summer months for economic reasons in order to maximize her potential to save money for her education. She is a child who was found by the court to have withdrawn from parental control, to have established a cohabitive relationship that would before long expose her and her boyfriend to possible legal obligations for support: see Scott, summarized at [2:043] Ontario Family Law Reporter, (unreported, September 2, 1988, Ont.Prov. Div., per Fraser J.). There is within the jurisprudence quite clearly the potential for judges to focus upon post-separation conduct as between parents and children, arguably a remarkable outgrowth of family law legislation that has "outlawed" except in the rarest of cases, any such consideration as between spouses. The test appears broad enough to enable a number of judges to assign fault, or blame, or breach of duty or diligence (or obedience) in respect of the child's behaviour at home or school, and thereby find lack of entitlement under section 31(2), the catch-all phrase "...withdrawn from parental control". Perhaps this restricted application of such concepts to the adult child has something to do with the fact that children are not part of the Family Law Act economic partnership, and therefore not protected from the fault-finding exercise. Having said all of this, we return to the opening remark, Judge Guay's decision in Judd v. Wrixon (Sept.7, 1995, Sudbury Registry No. PD 95 -179). In this case, an 18-year-old child had left the respective homes of both parents. She moved to a small town and into what the emotionally supportive home of her best friend and her mother from where she pursued her education through correspondence courses. She had no ongoing relationship with her father, the payer party. She had continued a relationship with her mother, deriving emotional support therefrom. She had lived apart from her for a number of years. The court found that at 18 years of age, the applicant "still does not have an easy or secure road ahead of her." The court found that the applicant's departure from both homes was ultimately caused by the parents' break-up, the resulting dysfunction within their respective households and the daughter's consequent inability to function in either household. As the court put it: "It is evident that she has done her best to cope with the situation flowing from her parents' separation and divorce. These events were not of her doing and it would be unfair if she were to suffer educationally from them." In the opinion of the court, and having regard to her the child's psychiatric history, this was not case where the applicant adult child had announced by his or her actions that he or she prefers to be independent and unfettered by parental control and not actively pursue schooling. On this basis, the court appeared to distinguish the case from that of Figueiredo, referred to above. In the court's view, it could be said that this applicant voluntarily withdrew from parental control, and "...as an eighteen-year-old who is still pursuing her education, she should not be left to her own wits to fund her uncompleted education." The court granted the child's application and varied the support order from that of the monthly amount of $207.26 to that of $325.00. As a side-note, one of our readers to the Ontario Family Law REPORTER sent in a decision proudly proclaiming it to represent the highest child support order ever granted by an Ontario Court. We think not, but it sure adds a perspective to the plight of the applicant child in the above case. A mother argued that her 15 year old daughter cost $4,241.06 NET of income tax, a figure that was inclusive of camp, orthodontia and psychotherapy. The father said a reasonable budget was $2,988.00 NET of income tax. In Dennis v. Wilson, Justice Walsh of the Ontario General Division found the child's monthly child care expenses to be $2,988 and grossed up the amount to cover the mother's taxes, ordering the father therefore to pay the monthly amount of $3,900 as child support. (See Dennis v. Wilson, digested at Volume 9, Issue 6 of the Ontario Family Law REPORTER, unreported, June 15, 1995). JW MORE CASES IN ONE (OR TWO) SENTENCES BARRESE v BARRESE, Provincial Division, Brownstone J., 951129 Access should be denied only in exceptional circumstances, such as this case, as a result of father's violence and children's fear of him. BOURCIER V DODGE, Provincial Division, Gauthier J., 951211 1987 consent order for child support was never paid. Neither a private agreement not to enforce nor laches is a defence to a statutory claim for arrears of support. COBB v WARDROP, Provincial Division, Hardman J., 951221 Custody awarded to mother on her undertaking to maintain a smoke-free home (!) and to abstain from drugs and alcohol. JINKERSON v JINKERSON, General Division, Marshman J., 951219 Exclusive possession of matrimonial home granted for about ten years in view of husband's physical abuse, and in the best interests of the children. LOGAN v LEVESQUE, Provincial Division, Guay J., 951130 Long distance telephone access held to be a financial burden and constant irritant. ROODAL v PERSAD, Provincial Division, Agro J., 950706 In minutes of settlement, parties agreed that mother could leave Ontario with their then three-year-old son for two years, to reside and work in the Netherlands, where she remarried and had another child. Mother applied successfully to vary the interim order to change her son's residency permanently to the Netherlands; MacGyver v. Richards applied. MCK  END -- Cut Here -- cut here From jik@annex-1-slip-jik.cam.ov.com Sat Jun 29 10:55:07 1996 Xref: elastic misc.legal.computing:1872 news.admin.net-abuse.misc:59624 Path: elastic!jaywon.pci.on.ca!ftn.net!n2tor.istar!tor.istar!ott.istar!istar.net!van.istar!van-bc!uniserve!oronet!news.sprintlink.net!news-stk-11.sprintlink.net!news.fibr.net!nntp.primenet.com!news.mathworks.com!bloom-beacon.mit.edu!jik.israel.net!jik.israel.net!jik From: jik@annex-1-slip-jik.cam.ov.com (Jonathan Kamens) Newsgroups: news.admin.net-abuse.misc,misc.legal.computing Subject: Re: "Child Molestor" page on http://www.greatworld.com/public/ Date: 28 Jun 1996 09:06:16 GMT Organization: jik's Linux box Lines: 45 Sender: jik@jik.israel.net (Jonathan Kamens) Message-ID: <4r07as$80l@jik.israel.net> References: <31D22B90.C55@syix.com> NNTP-Posting-Host: jik.israel.net In article , reap@counsel.net (Bob Reap) writes: |> The policies page (http://www.greatworld.com/public/maccept.htm) also |> states that quoting a "published source" is sufficient protection from |> libel. If someone types bogus information into their form, that hardly constitutes "publishing it"; that's merely submitting it to *them* for publication. Therefore, I fail to see how this could protect them from lawsuits even if it were true. |> I thought I remembered from law school that re-publication of |> libel can be libel itself (although I can't remember the standard of fault |> required). Correct. E.g., if a newspaper interviews Joe, who falsely states, "Fred embezzled money from the company," and the newspaper quotes that, Fred can sue the newspaper for libel even if Joe actually said it. The fact that the newspaper was quoting increases the burden of proof on Fred, but it doesn't make it impossible for Fred to sue the paper. Usually, Fred would file a suit against both the newspaper and the person being quoted. If the newspaper had reasonable grounds to believe Joe's statement (e.g., Joe is the CFO of the company and doesn't have any sort of record of lying in the past), it's entirely possible that the suit against the newspaper will fail, and all Fred will be left with is the suit against Joe. But that's clearly not relevant to this case, since greatworld.com clearly has *no* legitimate reason to trust the people submitting information for their database, and given the number of kooks on the Net, there are all sorts of reason why such information should be verified rather than trusted. Another possibility is that when Fred sues Joe and the newspaper, Joe will claim that he didn't say what the newspaper said he said. In that case, the newspaper has to prove that they quoted accurately in addition to proving it was reasonable for them to believe Joe. Something similar could happen here -- someone could submit an accusation to greatworld.com, and then if they and greatworld got sued, they could say, "Nope, I didn't send it, someone broke into my account!" Then greatworld would be in even bigger trouble. My overall impression is that this "database" (I think that's a rather charitable word for it) is a lawsuit waiting to happen. I can't *believe* that the people who set it up consulted with competent counsel before doing so. If they didn't, they're stupid. If they did, and their counsel approved it, then their counsel is stupid. From elastic!lethe!gts!whome!light-house!innuendo.tlug.org!clio.trends.ca!news3.buffnet.net!www.nntp.primenet.com!nntp.primenet.com!cpk-news-hub1.bbnplanet.com!newsfeed.internetmci.com!in2.uu.net!world!news@mongol.sasknet.sk.ca Wed Sep 18 06:38:12 1996 Xref: elastic can.legal:10701 misc.int-property:649 misc.legal:17193 misc.legal.computing:2258 misc.legal.moderated:117 Newsgroups: can.legal,misc.legal,misc.int-property,misc.legal.computing,misc.legal.moderated Path: elastic!lethe!gts!whome!light-house!innuendo.tlug.org!clio.trends.ca!news3.buffnet.net!www.nntp.primenet.com!nntp.primenet.com!cpk-news-hub1.bbnplanet.com!newsfeed.internetmci.com!in2.uu.net!world!news@mongol.sasknet.sk.ca From: Rick Downs Subject: Onlly in Canada??? Jail for Removing Owns Software Content-Type: text/plain; charset=us-ascii Message-ID: Sender: lkk@world.std.com (Larry Kolodney) Content-Transfer-Encoding: 7bit Organization: SaskNet News Distribution Mime-Version: 1.0 Date: Mon, 16 Sep 1996 01:10:58 GMT Approved: lkk@world.std.com (Co-Moderator misc.legal.moderated) X-Mailer: Mozilla 2.02E-SYMPA (Win16; I) Lines: 157 Only in Canada?? Jail for Removing Own Software A Provincial Court Judge has found a house designer and builder who deleted his personal software, and other information created with it from a computer, guilty for "Rendering Data Meaningless". After handing down his decision, the Judge sentenced the man to one day in jail, and a $500 fine. Charges stemmed from a complaint claiming the independent contractor (not an employee) had destroyed important company information including GST tax records, master house pricing lists, and house designs when he removed his personal software from the computer upon termination of his contract. However under cross examination the complainant admitted that no GST tax records or master house pricing had been on the computer. In addition the complainant could not substantiate his original testimony in which he stated he had paid for the development of the copyrighted house designs which had been removed, nor was there a license for their continued use. He did, however, point out that the house designs had been photocopied on his copier, so that should make them his. During the 3 day trial the Crown Prosecutor maintained the Law does not recognize ownership of data in a computer when it comes to its removal. He said the Law only recognized the owner of the computer, who had the right to control all data in it, including software, regardless of who owned it. The computer in question belonged to the company, but had been provided for the exclusive use of the contractor. He had copied to it his own DOS, software, and information he had created, including copyrighted house designs, to serve as a backup to his own computer at his home 50 miles away. He had been paid nothing for providing the software, nor anything he created with it. The Defense maintained that the contractor had simply been provided with a tool box - the computer without operating system or software - into which the contractor had put his tools. Upon completion of his contract work, the tools were removed and the tool box left for the next person to use. In finding the contractor guilty the Judge did not cite any of the initial accusations of destroying important information, nor intent to defraud. The written decision said the accused had destroyed software initially copied from his own computer, and information created with that software, so he had broken the Law in Canada by "Rendering Data Meaningless". Sound too absurd to be true? That's what I thought too, but now I know that in Canada this is the Law. The Law: Is section 430(1.1) of the Canadian Criminal Code which reads: Everyone commits mischief who wilfully (a) destroys or alters data; (b) renders data meaningless, useless, or ineffective; And data is defined as anything that can be installed in a computer. If the person has an interest (license agreement or copyright) in the data being destroyed the Law refers to section 429(3) which reads: Where it is an offence to destroy or damage anything, the fact that a person has a partial interest in what is destroyed or damaged, does not prevent him from being guilty of the offense if he caused the destruction or damage. (b) The fact that a person has a total interest in what is destroyed or damaged, does not prevent him from being guilty of the offense, if he caused the destruction or damage with intent to defraud. Further Implications? Of what may well be the first conviction of this kind in Canada: Data (software or inputted information) on leased computers requires permission to be granted by the owner of the computers prior to its removal by the owner of the data. Doing so without receiving that permission could result in criminal charges. My Points: First, I agree to the with the principle of this Law if it is to protect an individual's or company's data from unauthorized removal or destruction, such as data in a Point of Sale system which can take years to input and compile. But the Law was not particularly well thought out, thus is subject to abuse. There will always be unscrupulous people willing to abuse for personal gain. I believe it is the responsibility of our lawmakers / politicians to create laws which prevent this, rather than assist it. Second is Intellectual Property Rights. Just because this is not a generally well known subject does not disentitle one to the rights of Copyright Law, or licensing agreements for software, does it? However the investigating RCMP officer told me straight that he did not know about copyright, computers, or licensing agreements, and he did not care to, at which point I had to phone a lawyer. Tens of thousands of taxpayer's dollars have been spent because of this attitude. Obviously I can not make this go away - I spent the first year hoping for that to happen - so now I must bring attention to not only a "flawed" law, but also Intellectual Property Rights. Cast of Characters Judge K.A. Andrychuk: SK Provincial Court Judge who presided over the Trial at Yorkton SK Canada March 12, April 29, and June 24 of 1996 prior to delivering his decision on August 29. Barry Stricker: Crown Prosecutor and creative legal mind behind the Crown's case, who pointed out to a CBC TV reporter that the Law was relatively new, and he was not aware of any other applications of it. (Someone trying to make a name for himself?? Naw, couldn't be that.) Paul Smolinski: Complainant, GM of Yorkton Lumber Supply, a subsidiary of Newton Enterprise of Winnipeg MB. Canada. (Large corporation using the legal system at the taxpayer's expense to obtain copyrighted work rather than license it? Surely not so.) Cst Foster: RCMP computer expert who reviewed copyrighted house designs from evidence (diskettes provided by the accused} on the complainant's computer prior to the start of the Trial, and forgot to remove them when he was done. (Surely it was just an oversight because the donut joint was going to close, or something like that.) Cst Hans Thiessen: Investigating RCMP officer, an associate of the complainant through the local flying club. Also borrowed diskettes from the complainant to include in pictures of evidence surrendered by the accused, and related to one of the 3 theft charges which were dismissed. (He didn't do that because there was no physical evidence for the one theft charge, did he? Naw, it was just to make the picture look nicer.) Rick Downs: The accused, house designer and builder from Sturgis SK Canada, independant contractor convicted for removing personal software, and copyrighted information, because the computer was not his. (Seems to have a problem with a Law which gives the owner of the computer full control over what an individual can do with Intellectual Property obtained either by license or copyright. Aw, not another construction guy crying in his beer!) Please, let me know if you think there is a problem here, or if I am just crying in my beer? Thanx, Rick Downs Computer Criminal, formerly house designer and R2000 builder Voice: 306-548-4234 Fax: 306-548-4351 PS: To have not broken a Law, I should have left all my software and copyrighted information on the company computer. Next I should have gone home and deleted everything from my own computer to comply with my licensing agreements (or re-purchased all the software). Then I should have hired a lawyer to initiate a law suit to get my copyrighted property (house designs and software) back from the company. I don't know about this? From elastic!lethe!geac!herboid!whome!infoshare!n2ott.istar!ott.istar!istar.net!n3ott.istar!news-out.internetmci.com!news.internetMCI.com!newsfeed.internetmci.com!mr.net!www.nntp.primenet.com!nntp.primenet.com!howland.erols.net!panix!news.panix.com!not-for-mail Fri Oct 25 17:31:36 1996 Xref: elastic can.legal:11443 misc.legal.moderated:123 Path: elastic!lethe!geac!herboid!whome!infoshare!n2ott.istar!ott.istar!istar.net!n3ott.istar!news-out.internetmci.com!news.internetMCI.com!newsfeed.internetmci.com!mr.net!www.nntp.primenet.com!nntp.primenet.com!howland.erols.net!panix!news.panix.com!not-for-mail From: sorlin@magnus.acs.ohio-state.edu (Steven J Orlin) Newsgroups: misc.legal.moderated,can.legal Subject: False Arrest in Montreal, Quebec? (you tell me) Date: 24 Oct 1996 11:44:43 -0400 Organization: The Ohio State University Lines: 67 Sender: eck@panix.com Approved: eck@panix.com Message-ID: <54o2tb$q6i@panix.com> NNTP-Posting-Host: panix.com This past June I drove up to visit my fiancee in Montreal. I am a U.S. citizen and she is a Canadian citizen. To make a long story as short as possible: she had recently tried to discontinue a short friendship with a man in one of her classes at University when she discovered he was a nut case, on drugs, and very deceiving and manipulative. Unfortunately this guy had a crush on my fiancee, and was continuing to give her hang up phone calls at all hours of the night, for weeks after she stopped talking with him. The guy is in his early 30's and lives at home with his mother and other family. Right before my fiancee stopped talking with him, the guy tried to make sexual passes at her, etc. and started accusing her of all sorts of things, and even making violent threats at times. When the hang up phone calls wouldn't stop, and I was up there with her, I decided to give this guy a call and scare him away. I did so, and was careful to not make any direct threats of physical violence, but I did use choice phrases like "settle this once and for all", "fix your problem", etc. Never a direct threat of any physical violence whatsoever. That call was made at about 8:00PM. He hardly spoke a word, and was apparently shaking and 'leaking' in his pants. His mother was listening on the other line, and went frantic. She called the police and told them that I made death threats and was going to try to kill her son. She went crazy in front of the police apparently and made terrible lies. At 11:30pm, about 10 police officers came to my fiancee's apartment and arrested me. They didn't show me any warrant for my arrest, nor did they say they had one. They just said that I was being placed under arrest. (I didn't ask them if they had a warrant, should I have? Could I have resisted to go if they didn't?) Having faith in the law and justice, I went without a struggle, knowing full well that I didn't make any death threats (which was what they said they were arresting me for). Well as it turned out, I ended up spending the night in jail, and most of the next day, and just barely came in front of a judge before hte end of the working day. I'll spare you all the long and complicated mess while I was in jail, but what I want to know is this: 1) Did they unlawfully place me under arrest? 2) Are there any grounds for me to take legal action against them for destroying roughly 19 hours from a week long vacation with my fiancee? 3) How is it that you can call the police, make false claims, and have someone arrested and thrown in jail (freedom taken away for nearly a full day) without that person ever having done something against the law? Is there some exception when a non-Canadian citizen is the one in question? BTW: No I was not convicted of anything in the end, I almost had to pay a bond, but got around it by just signing a form saying I would be on good behavior for a year. I am very ignorant when it comes to law, so please take it easy on me. Any help is appreciated. Please give me your credentials if you have them (not to discourage any replies though). Also, I'm going to try to scan these newsgroups for replies, but a carbon copy sent to me via email is also very much appreciated. Thanks, Steve From elastic!lethe!gts!whome!infoshare!n2ott.istar!ott.istar!istar.net!van.istar!west.istar!n1van.istar!van-bc!news.mindlink.net!news.bc.net!arclight.uoregon.edu!feed1.news.erols.com!panix!news.panix.com!not-for-mail Wed Oct 30 06:53:49 1996 Xref: elastic can.legal:11503 misc.legal.moderated:127 Path: elastic!lethe!gts!whome!infoshare!n2ott.istar!ott.istar!istar.net!van.istar!west.istar!n1van.istar!van-bc!news.mindlink.net!news.bc.net!arclight.uoregon.edu!feed1.news.erols.com!panix!news.panix.com!not-for-mail From: Rick Downs Newsgroups: misc.legal.moderated,can.legal Subject: Re: False Arrest in Montreal, Quebec? (you tell me) Date: 29 Oct 1996 12:20:28 -0500 Organization: SaskNet News Distribution Lines: 156 Sender: eck@panix.com Approved: eck@panix.com Message-ID: <555ecs$43@panix.com> References: <54o2tb$q6i@panix.com> <54oo9d$hve@panix.com> <54qnb2$7ku@panix.com> <5531um$bmc@panix.com> NNTP-Posting-Host: panix.com Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit X-Mailer: Mozilla 2.02E-SYMPA (Win16; I) Karl Pollak wrote: > Travlr wrote: > > >I recently was accused of a crime in which I had nothing to do with > >and I had the hell scared out of me by Law Enforcement. It's quite > >apparent that Law Enforcement can do as they wish but us citizens > >have to sit back and take everything that's dished out. > > Perhaps in the US they can. We were discussing law enforcement in > Canada. > > > I now teach my children to not trust Law Enforcement, and to always > > keep a dam good lawyer on retainer. Personally I read that as "us citizens" not "U.S.A. citizens". ;>) But while on the topic of just how far law enforcement can go, and what options are available to the people who are abused by their misguided efforts, I would like to find some answers out. What follows is not hypothetical, is substantiatable, and is purely Canadian. On December 1, 1994 I had my contract terminated with the company for whom I had provided management services to for 5 years (was NOT an employee being terminated). I was authorized to tie up loose ends for pending work, and remove my personal property from the office provided for me (under the terms of a lease). No hard deadline was set, and I took about 2 weeks to do all this. All loose ends were looked after, and my property was removed by December 15th. On December 22, 1994, at a meeting to finalize monies owing to me a couple of things ot be significant later occured. First, I agreed to sell some of my Personal Property to the company, but complete terms of payment were not discussed at the time. Only an agreement in principle. In addition I was authorized to retain Company Property in order to complete the agreement of sale. Second, I agreed to purchase a $99.95 Item from the company, to be paid for from the balance of the money owed to me that day when I left the meeting (about $10,000.00). This was at the insistance of the GM who did not want that Item which I had purchased on behalf of the company in the previous capacity of my contract work. On January 5, 1995 the company GM contacted me to dictate the terms he wanted in regard to the purchase of the Personal Property. These terms were not acceptable to me. However there was no reversal of the agreement in principle to sell, just a disagreement on the terms of sale offered by the GM. The GM then gave me two days to comply with the terms he offered, or he would tell the RCMP that I had stolen this Personal Property. At that time there was no mention of the Item sold to me for $99.95. As the Personal Property was clearly identified with my name, I considered this threat to be absurd. Shortly after this conversation, which is the last one we had, the company GM told the Store Manager he was going to teach me a lesson. To do so he was going to bring in his friend, an RCMP constable. Not only would his RCMP friend investigate the matter for him, but he would also assist in helping to figure out "how to get me, and teach me a lesson". To justify his RCMP friend's investigation, on January 15, 1995 the GM provided a statement for the RCMP. He claimed that I had stolen my Personal Property from the company, as well as the Company Property still in my possession. There were also claims that I had destroyed important information which was actually in the possession of the Company. But there was no mention of the $99.95 Item which had been sold to me. On March 1, 1995 a Search Warrant was issued to the RCMP. On it was named my Personal Property, the important Company information, the Company Property, and now the $99.95 Item. All of this was voluntarily turned over to the RCMP except for the important Company information. As I did not have this, I could not provide it. However I did tell the RCMP officer were to find it at the Company's offices. On March 21, 1995 I was charged for the theft of the Company Property, the $99.95 Item, and my Personal Property. I was also charge for the destruction of important company information which was not "GST tax records" rather than what was listed on the Search Warrant. During the Trial the GM admitted under cross examination that he had never purchased my Personal Property from me, but had only agreed in principle to do so. For this reason, it was established that I still retained possession of the Company Property with permission. He also testified he had never informed me that there was no longer an agreement in principle to purchase my Personal Property. Also under cross examination he testified that he had sold the $99.95 Item to me, however was not yet paid for it but did owe me $10,000.00. He also testified he had never informed me that he had changed his mind about selling the Item to me, and the first I might have suspected this was when the RCMP produced a Search Warrant to seize the Item. On August 29, 1996 I was found guilty of all of the above. That is, I did not steal anything, nor did I destroy important Company information such as GST tax records. My ownership of my Personal Property was also accepted as valid. Now the Questions; The original poster in this thread made some threats, the other party blew it out of context, and consequently he was arrested. I can see how his situation got out of control. The poster quoted above is a case of mistaken identity. To me this is more a more serious error, but does not seem to have been a deliberate attempt to destroy the individual. In his case, having proven himself innocent, why is there a not means by which he could recover his legal expenses? To have pleaded guilty probaly would have been more _cost effective_ for him. To further provide him with a "kick in the face", my information is such that if he is Canadian, not only does have to pay his own legal defense bills, but he must pay Income Tax on the money he uses to do so. The Crown uses his (and our) taxes to prosecute him, which is fine. But when he proves himself innocent, he can not deduct his legal expenses so as to _at least_ not have to pay them with after tax dollars. If his bill were $10,000, that means he must earn about $12,500 to pay it. Should my information be correct, could someone please tell me why it is this way? And perhaps suggest what to do about it. If it is incorrect, please set me straight as to procedures to claim legal expenses. In my case it is quite obvious to me that the company GM conspired with the RCMP officer in order to make the Charges happen. However I did not know this at the start. Some of this can be deduced from the flow of the investigation and the Trial evidence. In addition I have third party verification of motive from the Store Manager at the time all of this began. It was his revelations which made sense of everything that happened to me. 1.0 Is the above described story within the bounds of Canadian Law? 2.0 If not, what is the Law that was violated? 3.0 How much evidence is required in order to lay charges? 4.0 Assuming that I can establish everything I said, do I have enough? 5.0 How would I go about it assuming that I will not get the co-operation of either local RCMP nor the Prosecutor? (As I suspect he worked "closely" with the GM and RCMP officer to put this together, and was very upset about the final outcome. Who cares about justice??) 6.0 Should I be able to successfully bring charges against the GM, would I be able to then recover my expenses from him? The legal bill for this will be in the range of $12,000, and my life went on hold for about 1 year as a result, costing about $30,000 in lost earnings. Any responses to these questions via Post or E-mail will be greatly appreciated; Thanx, Rick Downs From elastic!lethe!geac!herboid!whome!infoshare!n2ott.istar!ott.istar!istar.net!news.achilles.net!cunews!hookup!nntp-hub2.barrnet.net!cpk-news-hub1.bbnplanet.com!newsfeed.internetmci.com!in3.uu.net!news2.interlog.com!news1.io.org!iggers Wed Oct 30 07:12:38 1996 Xref: elastic can.legal:11472 Path: elastic!lethe!geac!herboid!whome!infoshare!n2ott.istar!ott.istar!istar.net!news.achilles.net!cunews!hookup!nntp-hub2.barrnet.net!cpk-news-hub1.bbnplanet.com!newsfeed.internetmci.com!in3.uu.net!news2.interlog.com!news1.io.org!iggers From: iggers@io.org (Dan Iggers) Newsgroups: can.legal Subject: Day of Protest - not enforcing the law Date: 26 Oct 1996 12:40:47 GMT Organization: Internex Online (shell.io.org), Toronto, Ontario, Canada Lines: 127 Message-ID: <54t0sf$nad@news1.io.org> NNTP-Posting-Host: zot.io.org X-Newsreader: TIN [version 1.2 PL2ovr] I made a half-hearted effort to get to work early Friday morning, The "Day of Protest", and gave up. I was surprised that I was not able, during the few minutes that I tried to hitch a ride. But to the point. I respect the right to demonstrate. The large numbers of people who are unhappy about the transition to the Harris Government and the changes it promises to make, have the right to make a big statement. That statement should be made lawfully and peacefully. I do not think the right to express their discontent extends to shutting down the transit system and blocking access to workplaces. I understand that informational pickets are not supposed to impede access to workplaces. When pickets do impede access, they are, strictly speaking, breaking the law. When they prevent large numbers of people from going to work, the violation is not a trivial one. It seems pretty clear that, just like the standard for running stale yellow lights, the standard for what amounts to a legal picket-that-does-not-impede has been stretched. People expect to get away with illegal picketing, and generally do. Pickets tend to be, strictly speaking, illegal these days - blatantly blocking access and flouting the law. Its not really a matter of stretching the standard. The words "we're just informational pickets" may be said, but all the while the picket captain is winking and smiling - everyone knows that no one is going to get into this or that workplace today. During the recent public service strike, the police stood aside and ignored a lot of illegality, in part because they shared some of labour's concerns. The politicians and managers understood that the police had sent a clear message - they would not enforce this law - and there was nothing they could do about it. Another reason the law tends to be ignored, and people tend to be permitted to block access and intimidate, is that arresting people - whether on a picket line or in a public disturbance or riot - does not pass a risk-reward test. If I were to park my car on the streetcar tracks at 8 in the morning, or smash some antique glass in the Queen's Park lobby, to protest the failure to enforce the law against hooliganism, I'd be hauled away under arrest before you could say Rosa Luxembourg. But if I lead 100 friends to Queen and Yonge to bare their breasts and block the streetcar tracks for 30 minutes, you can bet no arrests will be made. This seems to be a new policy in recent years. It may be a perfectly sensible policy, even in terms of public policy. This "anything goes if a large enough number of people do it" policy also is irritating to those of us who still have antique notions about enforcing the law. When I see a crowd breaking windows at the legislature, or shouting someone down at a public meeting, my response tends to be - some one should make that stop, even lay a few charges. But back to my point - I think the police and their managers make a crude calculation: Yes, someone is breaking the law, preventing someone from exercising their right to go to work, smashing some plate glass, trashing public property, vandalising a school gymnasium, openly selling and consuming drugs and alcohol at a huge party, whatever. Getting involved is moderately dangerous to the cops and to the "participants". If we go in and enforce the law, some of us could get hurt. We could be sued. We might have to respond to a formal complaint. Then, after pulling people out of a melee, we'll have to process charges, and document the evidence - who did what, said what, etc. I think there also is the sense that these days, anything involving a crowd requires careful planning, and sophisticated command and control by senior managers. A couple of beat cops in a car do not have the authority, let alone the training, to pull up to a small picket site, determine that the pickets are obviously blocking access and intimidating people, advise the picketers to cease and desist, and then place picketers under arrest and haul them away. Any one such incident is liable to require large numbers of officers, and command and logistical involvement from the highest levels. The financial cost to the public will be large if the police intervene to enforce the law - Crown attorneys, large expenditures of legal aid, accommodation in the gaol for a few hours, JPs, court officers, etc. Then there will be more inconvenience. An already crowded system will be pushed to its limits. At the end of the day, people who treated the process with contempt will have their charges dismissed, or will be given discharges that they will accept with a defiant sneer. At the very beginning of the process, an officer is liable to ask: What's the point? Which brings me to a concluding point - assuming one considers that people should not "get away with" minor but very objectionable hooliganism, do we want to pay the price of enforcing the law? Is it better to write off a day of disruption, and let the hooligans have their day? Is it really that crucial that the law be enforced, each and every day? Is hooliganism its own reward, that ultimately harms the credibility and reputation of the hooligan? What do I think? My gut reaction is that "they shouldn't get away with it". My more sober (but reluctant) response is that trying to enforce the law may be a no win situation. (Afterthought: Why not at least try to (1) videotape picket sites; (2) prevent people from wearing masks or disguises; and (3) show videotape of possibly unlawful conduct on the cable channel. If you can't afford to charge them, at least you can show them for what they are.) Dan Iggers iggers@io.org From elastic!lethe!abyss!light-house!whome!infoshare!n2ott.istar!ott.istar!istar.net!van.istar!west.istar!uniserve!sunqbc.risq.net!newsflash.concordia.ca!not-for-mail Wed Oct 30 07:13:11 1996 Xref: elastic can.legal:11492 Path: elastic!lethe!abyss!light-house!whome!infoshare!n2ott.istar!ott.istar!istar.net!van.istar!west.istar!uniserve!sunqbc.risq.net!newsflash.concordia.ca!not-for-mail From: f_gerac@alcor.concordia.ca () Newsgroups: can.legal Subject: Update on legal case for tort liability Date: 28 Oct 1996 16:34:23 GMT Organization: Concordia University, Montreal, Canada Lines: 32 Message-ID: <552naf$34d@newsflash.concordia.ca> NNTP-Posting-Host: alcor.concordia.ca NNTP-Posting-User: f_gerac A few weeks ago, I posted a message regarding the right to take a school board to court over the injury to a 6 year old (who is now 26). I did get a lot of good advice and am thankful for that. Now I have new information I discovered about the case. First let me explain the accident. While dressing up the the coat-room, the six year old child was sprayed with glass froma window wihich was apparently broken from the outside (the school yard with a rock). The rock was discovered at the scene. The child sufered trauma to the right eye which required surgery to close the cut over the cornea. Now the person has severe astigmatism, partial cataract, and the obvious cosmetic detail of an oval pupil. Eyesight is poor and at best correction is 20/50. After this happened, the parents attempted legal action. A law firm was contacted and began the procedings. I have read the letters from the firm and the police and medical reports. After some time, the firm came to a conclusion that they had no case because the school claimed no responsibilty and the only recourse was to find the person who threw the stone. I'm not an legal professional, but isn't there something flawed in this theory? I mean, shouldn't the school have been supervising the child. When the window broke, all that was left in the coat room was the child and another kid you ran downstairs to call the principle. Isn't the school responsible for this un-supervised incident or even the stone thrower;s action which happend on school property? Opinion's appreciated in this twisting tale. ThankYou From elastic!lethe!abyss!light-house!innuendo.tlug.org!clio.trends.ca!ki.net!news.flora.ottawa.on.ca!news.achilles.net!cunews!hookup!newsfeed.direct.ca!nntp.portal.ca!news Sat Nov 2 16:59:37 1996 Xref: elastic can.legal:11523 Path: elastic!lethe!abyss!light-house!innuendo.tlug.org!clio.trends.ca!ki.net!news.flora.ottawa.on.ca!news.achilles.net!cunews!hookup!newsfeed.direct.ca!nntp.portal.ca!news From: kpollak@portal.ca (Karl Pollak) Newsgroups: can.legal Subject: Re: Paying Child Support while having Custody of Children Date: Thu, 31 Oct 1996 23:49:56 GMT Organization: Bottomline Productions, Richmond, BC Lines: 36 Message-ID: <55bdrf$dha@thoth.portal.ca> References: <557o9c$rgg@news.telusplanet.net> <55ajqs$o04@news.interlog.com> NNTP-Posting-Host: d151.portal.ca X-Newsreader: Forte Free Agent 1.0.82 alchemy@interlog.com (Morton M. Goldmacher) wrote: >David Thomas wrote: >>I'm looking for information on some Canadian statistics of how many >>divorced parents who have custody of the children and still pay child >>support to the children's other parent. >>Is this common in Canada. >>I'm in a community of 38,000 and have been able to locate 1 case. >Are you sure that the non-custodial parent is not recieving spousal >support? Child support is only payable to the custodial parent. Morton, incredible as it may seem, I have also heard of several cases where the child was living with the "non-custodial" parent who was still obligated to pay child support to the custodial parent, regardless of the real life facts. I think that happens when custody changes, temporarily or permanently, and folks don't go to court to have their orders changed. Of course, in many cases it is a question of not wanting to rock the boat. Something along the lines of "I don't mind if little Johnny goes to live with you, but if you try to have it put into an order, I'll oppose it and shred you to pieces before the judge. So, in the mean time, keep on paying the dough or else." Just another instance where kids are being used as markers in a spiteful feud between the allegedly adult parents. Karl Pollak Richmond, British Columbia From elastic!lethe!abyss!light-house!whome!infoshare!n2ott.istar!ott.istar!istar.net!van.istar!west.istar!n1van.istar!van-bc!data.ramona.vix.com!sonysjc!decwrl!news-ext.crl.dec.com!bloom-beacon.mit.edu!ai-lab!prep.ai.mit.edu!gnu Fri Nov 15 08:44:07 1996 Xref: elastic gnu.announce:124 Date: Sun, 10 Nov 1996 15:42:10 -0500 Message-ID: From: Richard Stallman To: info-gnu@prep.ai.mit.edu Subject: New threat to access to information--sports, trains, stocks, laws, ... Distribution: world Approved: info-gnu@prep.ai.mit.edu Path: elastic!lethe!abyss!light-house!whome!infoshare!n2ott.istar!ott.istar!istar.net!van.istar!west.istar!n1van.istar!van-bc!data.ramona.vix.com!sonysjc!decwrl!news-ext.crl.dec.com!bloom-beacon.mit.edu!ai-lab!prep.ai.mit.edu!gnu Newsgroups: gnu.announce Followup-To: gnu.misc.discuss Lines: 508 [The Free Software Foundation is re-posting this article to inform you about a dangerous threat to the public right to access and use many kinds of information. This article is long, but quite readable. It uses sports statistics as an example, but the problem extends to any sort of facts that can be kept in a data base. Please do read it.] Date: Sun, 10 Nov 1996 12:36:34 -0500 (EST) From: James Love Subject: Sports Statistics to Be Regulated Under WIPO Treaty (fwd) ----------------------------------------------------------------- Info-Policy-Notes - A newsletter available from listproc@tap.org ----------------------------------------------------------------- INFORMATION POLICY NOTES NOVEMBER 10, 1996 Government Proposes New Regulation of Sports Statistics and other "facts" James Love Consumer Project on Technology http://www.essential.org/cpt love@tap.org; 202/387-8030* November 10, 1996 This issue of INFO-POLICY-NOTES was formatted in 12 point courier, with 1 inch margins. An HTML version of this note is available at http://www.essential.org/cpt/ip/wipo-sports.html INTRODUCTION Sports fans in the United States will be surprised to learn that U.S. Government officials are pressing for the adoption of an International treaty that will (if enacted) significantly change the ways sports statistics are controlled and disseminated. The treaty isn't specifically directed at sports statistics -- it is a much broader attempt to create a new property right in facts and other data now in the public domain - - but it will have an enormous impact on the legal rights exercised by the National Football League (NFL), Major League Baseball (MLB), the National Basketball Association (NBA), the National Hockey League (NHL) and virtually all other professional or amateur athletic leagues. [The same treaty will radically affect the way that stock prices, weather data, train schedules, data from AIDS research and other facts are controlled, but this note will focus on the issue of sports statistics, a topic that illustrates the broad impact of the treaty]. This comes at the same time the NBA and other sports franchises are stepping up their efforts to control the real time dissemination of sports statistics through the Internet or with wireless paging devices. [See, for example, http://www.news.com/News/Item/0,4,3208,00.html]. The treaty, however, addresses different and much more fundamental issues regarding ownership of information. If the treaty is approved and implemented, sports leagues will have far broader powers to dictate the terms and conditions under which sport statistics are reported and disseminated. Nolan Ryan's Earned Run Average (ERA), the number of tackles or quarterback sacks by Lawrence Taylor, Cal Ripken's career batting average, Bobby Hull's career assists, the number of steals by your favorite NBA point guard, and similar information will be "owned" by sports leagues. According to the proposed treaty (and legislation introduced in the 104th Congress to implement the treaty), the NFL, NBA, NHL and MLB will have the right to prevent anyone from publishing these and other statistics without express permission from the sports league. This will include the right to control access to the historical archives of sports statistics, and even to dictate who can publish the box scores from a game or print a pitcher's ERA on the back of a baseball card. The proposals for a new legal environment for publishing facts are outlined in a draft treaty on "databases" that will be considered at a December 1996 meeting of the World Intellectual Property Organization (WIPO), in Geneva, Switzerland. [See www.public-domain.org/database/database.html] The proposal would require the United States and other countries to create a new property right for public domain materials. "Texts, sounds, images, numbers, facts, or data representing any other matter or substance," will be protected. [See the appendix for a more complete definition]. The treaty seeks, for the first time, to permit firms to "own" facts they gather, and to restrict and control the redissemination of those facts. The new property right would lie outside (and on top) of the copyright laws, and create an entirely new and untested form of regulation that would radically change the public's current rights to use and disseminate facts and statistics. American University Law Professor Peter Jaszi recently said the treaty represents "the end of the public domain." Copies of the proposed treaty, a federal register notice asking for public comment, and independent commentary can be found at: http://www.public-domain.org/database/database.html WHO IS PUSHING FOR THE DATABASE TREATY? In 1991, the US Supreme Court ruled (in the Feist decision) that the facts from a telephone "White Pages" directory of names, addresses and phone numbers were not protected under the copyright laws, and that in general, "facts" could not be copyrighted by anyone. The Feist decision alarmed several large database vendors, who crafted this new "sui generis" property right that would protect facts, and just about everything else. [The vendors have already succeeded in obtaining a directive on database proposal from the European Union, although no European country has yet passed legislation to implement the treaty]. The most active supporter of this new property right is West Publishing, the Canadian legal publisher. A West Publishing employee chairs a key ABA subcommittee which wrote a favorable report on the treaty. A number of very large British and Dutch database vendors are also lobbying hard for the treaty. West wants the new property right to protect the "page numbers" and "corrections" it adds to the judicial opinions it publishes in paper bound books. Telephone companies want to protect the names, addresses and telephone numbers they publish, and other database vendors what to protect scientific data or other non-copyrighted government information they publish. In seeking to protect these items, the treaty was written to stamp "owned by" labels on a vast sea of information now in the public domain. Copyright experts J.H. Reichman and Pamela Samuelson say it is the "least balanced and most potentially anti- competitive intellectual property rights ever created." [http://ksgwww.harvard.edu/iip/reisamda.html] There is an active debate within the Clinton Administration over the proposed treaty. Bruce Lehman, the controversial head of the Patent and Trademark Office (PTO) is pushing for adoption of the treaty this December. Most administration official don't have a clue what the database treaty does. Some people think it is a minor tinkering with the current copyright law. No one in the government has sought to understand the significance of the proposal in terms of the new rights to "own" facts, and until recently no one was aware that the treaty was so broad that it would change the way sports or financial statistics were controlled. HOW WILL THE TREATY WORK? In Feist, the Supreme Court noted: (a) Article I, Sec. 8, cl. 8, of the Constitution mandates originality as a prerequisite or copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original and, thus, are not copyrightable. [From the Syllabus of the opinion, at http://www.law.cornell.edu/supct/classics/499_340v.htm] Since facts cannot be copyrighted, the supporters of the treaty have framed this as a new "sui generis" property right, which will have a separate statutory framework. "Originality" or "authorship" will not be required. "Texts, sounds, images, numbers, facts, or data representing any other matter or substance," will be protected. The information can be stored in "all forms or media now known or later developed." Both published and confidential information will be covered. The only thing required is a "substantial investment in the collection, assembly, verification, organization or presentation of the contents" of the protected work. The "rightholder" will have extremely broad powers to "authorize or prohibit the extraction or utilization" of the information from the protected database. It takes a while for the implications of this new system to sink in. Some facts can be independently gathered, like the number of baseball games played in a year, the winners or losers of a tennis match, or the scores of a football game. For these data, there may exist several sources for the data. However, other facts are, by their very nature, only available from a single source, and will be controlled by monopolies. For example, baseball leagues employ scorekeepers who determine if a batter is credited with a hit or if a fielder committed an error, if a hit is reported as a single or double, or if an errant pitch is scored as a wild pitch or a passed ball. The league makes a "substantial investment" in the collection and maintenance of this data, which it disseminates to the press, and also stores and maintains in a database, through an arrangement with the Elias Sports Bureau. These data cannot be independently collected - and under the proposed database treaty, the league would own the facts themselves, and could dictate the terms under which these facts are published or redisseminated. The NFL employs four persons who keep track of the play-by- play action for each game. They write up four separate reports, which are used to create a single official "box score." The final product is supervised by the Elias Sports Bureau, as a "work for hire" product, which is owned by the NFL. The NFL box score is very detailed, and includes analysis of each play. It records the league's statistics for the number of yards gained (or lost) on each play, who is credited with a tackle or a quarterback sack, or the number return yards on a kickoff or pass interception, and many other items. While someone who attended a football game could make an independent estimate of these items, it would likely be different from the official statistics, due to the inherent difficulty in measuring or assigning credit for performance on the field. The NFL's box score is given to the press, which uses the data to create its own news media reports. An attorney who represents the National Football League (NFL) told us that the NFL has an interest in insuring that there is an "official" source of the statistics, which are gathered with an appropriate standard of care and that the NFL "protects the official designation" of its statistics. These data are used for making decisions on the Hall of Fame, and to create special reports and information products, which the NFL provides to third parties, often for a fee. Virtually all of the major league sports leagues have some system for creating statistics, disseminating the information to the press, storing the historical data, and marketing the statistics commercially. Major League Baseball and the NBA work with Elias, while the NBA and the NHL have their own in-house system. There is little doubt the process by which these statistics are generated will qualify for protection, under the treaty's minimal requirement that the league demonstrate it has made a "substantial investment in the collection, assembly, verification, organization or presentation of the contents" of database. The work-for-hire "media sheets," "box scores," and other press handouts which report the statistics would be considered database elements, and reporting of statistics from these products would be subject to an entirely new type of licensing and control by the leagues which is far stronger than that which exists under copyright law. [See appendix]. The leagues have various methods of selling their "official" branded statistics. There are also many competitors who build databases from a variety of sources, including the published box scores that appear in daily newspapers, and probably the books and reports published by the leagues. The leagues do not currently assert "ownership" in the statistics directly, even as they try to prevent others from referring to the data as "official" statistics, but they are trying to prevent real time reporting of game statistics and situations over Internet or paging technologies. The NBA told us that it permits accredited journalists to report scores from NBA games three times each quarter, and that it considers the minute to minute reports a "misappropriation" of its ability to sell performance rights for the event. The NFL takes a similar position with respect to its games. STATS, Inc. is a firm that provides real time scores and play-by-play descriptors to a variety of online and wireless information services. According to the NFL and the NBA, STATS, Inc. hires people to watch television broadcasts of the games, and type the play-by-play information into personal computers, which are linked to the STATS, Inc. computer network services. An example of this type of service that uses STATS, Inc. as a supplier of statistics is Instant Baseball, available at http://www.InstantSports.com/. Disputes over the real time Internet broadcasts of game situations and scores could well end up before the U.S. Supreme Court, as a test of the first amendment. In the NBA case involving Motorola, STATS, Inc. and America Online, the NFL and other leagues have filed amicus briefs in support of the NBA position, while the New York Times has filed a brief in support of Motorola, STATS, Inc. and America Online. About two weeks ago the NBA discovered HR 3531, a version of the database protection proposal that was introduced in the U.S. Congress last spring. The NBA is looking at HR 3531 to see if it would provide a legislative remedy for their dispute with Motorola, et. al. (Like the other leagues, the NBA wasn't aware of the database treaty until last week.) At present, none of the leagues currently prevent anyone from publishing statistics after a game is over, because it is assumed that the statistics (facts) are in the public domain, once the broadcasts are over. But this would likely change if the database treaty is enacted. One league official told me, "no matter how appalled I am at this proposal personally, as a civil libertarian, my client may have interests as a rightholder that it will want to exercise." A lawyer for the NFL said that the NFL might not want to do anything - he thought the free dissemination of statistics brought its own benefits, in terms of increased fan interest. But he also said, the treaty would allow the NFL to "do quite a bit of stuff," in terms of new licensing arrangements or other ventures, if it wanted to. As a "sui generis" property right, the database proposal does not incorporate the fair use principles from copyright that reporters and value added publishers often take for granted. The leagues would be able to require license to publish box scores or other statistics in any media. One can imagine a world where the leagues wouldn't require licensing of box scores to print based periodicals like daily newspapers, but that a much more controlled regimen would evolve on the Internet. The leagues could require licensing of box scores and other statistics for Internet publications, or linking to the leagues own web sites, such as www.nba.com, www.nba.com, or www.nhl.com. The Internet is, after all, a very easy place to locate and police violations of intellectual property rights -- through a simple AltaVista search. This would also likely lead to major changes in the market for baseball (and other sports) cards, which typically feature key statistics on the flip side of the card. The new database extract rights would prohibit any unauthorized extraction or reuse of data that had economic value to the leagues (See discussion in Appendix). WHAT CAN YOU DO? The government is taking comments on the database treaty through November 22, 1996. If you don't think the government should rush into a new regulatory scheme for sports statistics, let them know. You can email your comments to: diploconf@uspto.gov. If you want to know more about his proposal, check out http://www.public-domain.org/database/database.html. PS Of course, this treaty deals with a lot more than sports statistics. It will do the same thing for information on stock prices that is generated by a stock exchange. It will radically change the market for weather information. There is concern in Europe over the control over train schedules. Private Schools could use the new data extraction right to prevent unauthorized publication of data about its student's test scores or post graduate placement statistics (both generated from a database). The treaty would radically change the rights to use information from gene sequencing, or hospital cost benefit studies. It will obviously do much much more. Since I have tried to keep this note simple, a lot has been left out. But consider this. The treaty, which was designed to protect West Publishing's legal reporters, has been written so broadly that it will define even the daily newspaper as a "database" element. Since the new property right is additive to to all rights claimed under copyright, every publisher will claim the additional protection, by saying each issue of the newpaper is a database element. (virtually all newspapers today are archived in databases). The consequences of this are astounding, since every fact and article in every newspaper will have the new stronger form of protection, which will not include any public fair use rights. You might ask your member of Congress what the heck is going on with the treaty, and see if they understand it. James Love, Director Consumer Project on Technology 202/387-8030; love@tap.org * I will be out of the U.S. from November 11 to November 20, attending a conference on the impact of international trade agreements on intellectual property rights in New Delhi, India, and will be hard to reach before the 21st. Two law professors who have studied the treaty extensively are: Professor Pamela Samuelson, University of California at Berkeley, Voice (510)642-6775, pam@sims.berkeley.edu Professor Peter Jaszi, American University, School of Law, Voice (202) 885-2600, pjaszi@wcl.american.edu APPENDIX ----------------------------------------------------------------- Extracts from James Love, "A Primer On The Proposed WIPO Treaty On Database Extraction Rights That Will Be Considered In December 1996, October 29, 1996, http://www.essential.org/cpt/ip/cpt- dbcom.html] WHAT IS A DATABASE? WHAT ISN'T A DATABASE? The treaty would protect "any database that represents a substantial investment in the collection, assembly, verification, organization or presentation of the contents of the database." This term should be understood "to include collections of literary, musical or audiovisual works or any other kind of works, or collections of other materials such as texts, sounds, images, numbers, facts, or data representing any other matter or substance" and "may contain collections of expressions of folklore." The "protection shall be granted to databases irrespective of the form or medium in which they are embodied. Protection extends to databases in both electronic and non- electronic form" and "embraces all forms or media now known or later developed. . . Protection shall be granted to databases regardless of whether they are made available to the public. This means that databases that are made generally available to the public, commercially or otherwise, as well as databases that remain within the exclusive possession and control of their developers enjoy protection on the same footing." WHAT ARE EXTRACTION AND UTILIZATION RIGHTS? "The maker of a database eligible for protection under this Treaty shall have the right to authorize or prohibit the extraction or utilization of its contents." What is "extraction"? Extraction is defined as, "the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form." "Extraction . . . is a synonym for `copying' or `reproduction' . . . by `any means' or `any form' that is now known or later developed." "Utilization" is defined as "making available to the public all or a substantial part of the contents of a database by any means, including by the distribution of copies, by renting, or by on- line or other forms of transmission," including the right to control the use of the data "at a time individually chosen by each member of the public." WHAT IS A "SUBSTANTIAL PART" OF THE DATABASE? The treaty sets out tests for determining if an extraction is "substantial," and these tests are both highly anticompetitive, and extremely broad in scope. The "substantiality" of a portion of the database is assessed against the "value of the database," and considers "qualitative and quantitative aspects," noting that "neither aspect is more important than the other . . . This assessment may also take into account the diminution in market value that may result from the use of the portion, including the added risk that the investment in the database will not be recoverable. It may even include an assessment of whether a new product using the portion could serve as a commercial substitute for the original, diminishing the market for the original." Then the treaty adds that a "substantial part" means any portion of the database, "including an accumulation of small portions . . . In practice, repeated or systematic use of small portions of the contents of a database may have the same effect as extraction or utilization of a large, or substantial, part of the contents of the database." In the US implementing legislation, the only types of data use that would not be regulated would be "insubstantial" parts, "whose extraction, use or reuse does not diminish the value of the database, conflict with a normal exploitation of the database or adversely affect the actual or potential market for the database." Under this language, a database owner could say that it might in the future want to charge for each transmission of a fact or an element of a database as part of its "normal exploitation" of the database. With the Internet and digital cash this claim is likely to be made. The public would not have "fair use" rights, since fair use is only defined in matters involving copyright. FOR HOW LONG? 15 YEARS, 25 YEARS, OR FOREVER? The Treaty would require a minimum term of protection (15 years in the EU proposal, and 25 in the United States proposal) for the database. But this is extended each time the database is revised or enhanced. According to the draft treaty, "any substantial change to the database, evaluated qualitatively or quantitatively, including any substantial change resulting from the accumulation of successive additions, deletions, verifications, modifications in organization or presentation, or other alterations, which constitute a new substantial investment, shall qualify the database resulting from such investment for its own term of protection." The provision on revisions raises the specter that protection for many databases will be perpetual. This could indeed be the case if the original versions of the database are only "licensed" by the vendor for a limited period of time, so that the only available versions would be the new ones, which would have a new term of protection. [Database vendors write these restricted use licenses now]. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ INFORMATION POLICY NOTES is a free Internet newsletter sponsored by the Taxpayer Assets Project (TAP) and the Consumer Project on Technology (CPT). Both groups are projects of the Center for Study of Responsive Law, which is run by Ralph Nader. The LISTPROC services are provide by Essential Information. Archives of Info-Policy-Notes are available from http://www.essential.org/listproc/info-policy-notes/ TAP and CPT both have Internet Web pages. http://www.tap.org http://www.essential.org/cpt Subscription requests to info-policy-notes to listproc@tap.org with the message: subscribe info-policy-notes Jane Doe TAP and CPT can both be reached off the net at P.O. Box 19367, Washington, DC 20036, Voice: 202/387-8030; Fax: 202/234-5176 +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ From elastic!lethe!gts!nypl!demon.uunet.ca!news.uunet.ca!hookup!cunews!freenet-news.carleton.ca!news.flora.ottawa.on.ca!piano.synapse.net!n4ott.istar!ott.istar!istar.net!van.istar!west.istar!n1van.istar!van-bc!news.mindlink.net!news.bc.net!rover.ucs.ualberta.ca!tribune.usask.ca!teapot.usask.ca!skeeter Thu Nov 28 20:08:41 1996 Xref: elastic can.general:65708 can.gov.general:2947 can.legal:11833 can.politics:105873 can.talk.guns:11109 Path: elastic!lethe!gts!nypl!demon.uunet.ca!news.uunet.ca!hookup!cunews!freenet-news.carleton.ca!news.flora.ottawa.on.ca!piano.synapse.net!n4ott.istar!ott.istar!istar.net!van.istar!west.istar!n1van.istar!van-bc!news.mindlink.net!news.bc.net!rover.ucs.ualberta.ca!tribune.usask.ca!teapot.usask.ca!skeeter From: skeeter@teapot.usask.ca (Skeeter Abell-Smith) Newsgroups: can.talk.guns,can.politics,can.general,can.legal,can.gov.general Subject: Re: more detail on Bill C-55 (monitoring without being charged) Followup-To: can.talk.guns,can.politics,can.general,can.legal,can.gov.general Date: 22 Nov 1996 19:18:38 GMT Organization: University of Saskatchewan Lines: 135 Message-ID: <574uae$ccq@tribune.usask.ca> References: <56smv0$9m2@tribune.usask.ca> <56sn84$9m2@tribune.usask.ca> <15380.32496.s0931bs@cwlib.cuug.ab.ca> NNTP-Posting-Host: teapot.usask.ca X-Newsreader: TIN [version 1.2 PL2] Bill C-55 was introduced in Parliament and given first reading on September 17th. It was debated on October 3rd and 4th and passed second reading on October 7th. It has now been referred to the Commons Justice Committee. Stephen Jenuth (sjenuth@cwlib.cuug.ab.ca) wrote: } It seems to be a fairly moderate extention of the peace bond } provisions in the Criminal Code. These provisions are in addition } to the common law jurisdiction of justices to bind persons over } to keep the peace. Monitoring my movements because someone *fears* I will offend against persons _who_need_not_be_named_, without charges or a trial, is something I find highly offensive. } It seems that these provisions are much preferable to the current } practice of getting restraining orders which are often obtained } ex parte and without a hearing. In this procedure the accused } has notice, the right to present evidence and to attempt to } contradict the allegations made by the attorney general. Replacing a broken system with something offensive and, in the opinion of many lawyers, unconstitutional is no great achievement. } The idea seems to be the prevention of crime, rather than the } punishment of crime after it occurs. Looked at it this way, } the idea seems laudable. You're right. Let's restrain everyone because, hey, you never know. Police states have extremely low crime rates, right? "Looked at it this way, the idea seems laudable." } And yes, if it seems to the provincial court judge hearing the case } find that there are reasonable grounds that the person will commit } a serious personal injury offence, the judge can prohibit that person } from possessing a gun. "...believes that there are reasonable grounds to fear..." And no probable grounds either. Just "reasonable". No trial, no charges, no verdict. If you can't prove your innocence and show you are not a risk, you get "the clamp" for up to a year. } But then, should people are shown to be dangerous, have guns?? Where does it say "shown to be dangerous" anywhere in the text below? It reads "Where the Attorney General believes that there are reasonable grounds to fear that another person will commit a serious personal injury offence...." Bill C-55 would amend the Criminal Code by adding the following: Where fear of serious personal injury offence 810.2 (1) Where the Attorney General believes that there are reasonable grounds to fear that another person will commit a serious personal injury offence, as that expression is defined in section 752, in respect of one or more persons, the Attorney General may lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named. Duty of provincial court judge (2) A provincial court judge who receives an information under subsection (1) shall cause the parties to appear before the provincial court judge. Adjudication (3) The provincial court judge before whom the parties appear may, if satisfied by the evidence adduced that the Attorney General has reasonable grounds for the fear, order that the defendant enter into a recognizance to keep the peace and be of good behaviour for any period that does not exceed twelve months and to comply with any other reasonable conditions prescribed in the recognizance, including conditions set out in subsections (4) and (5), that the provincial court judge considers desirable for securing the good conduct of the defendant. Conditions -- firearms (5) Before making an order under subsection (3), the provincial court judge shall consider whether it is desirable, in the interests of the safety of the defendant or of any other person, to include as a condition of the recognizance that the defendant be prohibited from possessing any firearm or any ammunition or explosive substance for any period of time specified in the recognizance and that the defendant surrender any firearms acquisition certificate that the defendant possesses, and where the provincial court judge decides that it is not desirable, in the interests of the safety of the defendant or any other person, for the defendant to possess any of those things, the provincial court judge may add the appropriate condition to the recognizance. Conditions -- reporting and monitoring (6) Before making an order under subsection (3), the provincial court judge shall consider whether it is desirable to include as a condition of the recognizance that the defendant report to the correctional authority of a province or to an appropriate police authority or to comply with a program of electronic monitoring, if such a program is available in the place in which the defendant resides, and where the provincial court judge decides that it is desirable for the defendant to so report or be monitored, the provincial court judge may add the appropriate condition to the recognizance. Variance of conditions (7) The provincial court judge may, on application of the Attorney General or of the defendant, vary the conditions fixed in the recognizance. Other provisions to apply (8) Subsections 810(4) and (5) apply, with such modifications as the circumstances require, to recognizances made under this section. -- ab133@sfn.saskatoon.sk.ca <---------------------> Saskatoon Free-Net My opinions may be unlike others. No one else's opinions are implied. The Cdn-Firearms Home Page is now at: http://teapot.usask.ca/cdn-firearms/homepage.html -- * * The Cdn-Firearms digest: Canada's only firearms e-mail list * * Subscribe today. It's free! Leave the Subject: line blank and e-mail the following 3 lines to majordomo@sfn.saskatoon.sk.ca: subscribe cdn-firearms-digest subscribe cdn-firearms-alert end From elastic!lethe!geac!gts!nypl!demon.uunet.ca!news.uunet.ca!hookup!newsfeed.dacom.co.kr!usenet.kornet.nm.kr!howland.erols.net!news.bbnplanet.com!cam-news-hub1.bbnplanet.com!uunet!in3.uu.net!news2.interlog.com!news.interlog.com!news Thu Nov 28 20:09:48 1996 Xref: elastic can.general:65748 can.gov.general:2949 can.legal:11837 can.politics:105966 can.talk.guns:11128 Path: elastic!lethe!geac!gts!nypl!demon.uunet.ca!news.uunet.ca!hookup!newsfeed.dacom.co.kr!usenet.kornet.nm.kr!howland.erols.net!news.bbnplanet.com!cam-news-hub1.bbnplanet.com!uunet!in3.uu.net!news2.interlog.com!news.interlog.com!news From: alchemy@interlog.com (Morton M. Goldmacher) Newsgroups: can.talk.guns,can.politics,can.general,can.legal,can.gov.general Subject: Re: more detail on Bill C-55 (monitoring without being charged) Date: Sat, 23 Nov 1996 04:00:38 GMT Organization: Barrister and Solicitor Lines: 47 Message-ID: <575ifr$ha@news.interlog.com> References: <56smv0$9m2@tribune.usask.ca> <56sn84$9m2@tribune.usask.ca> <15380.32496.s0931bs@cwlib.cuug.ab.ca> Reply-To: alchemy@interlog.com NNTP-Posting-Host: ip94-62.tor.interlog.com X-Newsreader: Forte Free Agent 1.0.82 sjenuth@cwlib.cuug.ab.ca (Stephen Jenuth) wrote: >In <56sn84$9m2@tribune.usask.ca> skeeter@teapot.usask.ca (Skeeter Abell-Smith) writes: >It seems to be a fairly moderate extention of the peace bond >provisions in the Criminal Code. These provisions are in addition >to the common law jurisdiction of justices to bind persons over >to keep the peace. >It seems that these provisions are much preferable to the current >practice of getting restraining orders which are often obtained >ex parte and without a hearing. In this procedure the accused >has notice, the right to present evidence and to attempt to >contradict the allegations made by the attorney general. >The idea seems to be the prevention of crime, rather than the >punishment of crime after it occurs. Looked at it this way, >the idea seems laudable. Bill C-55 is not a moderate extension of the peace bond provisions of the criminal code, it is a deeply invasive sanction that has no basis in common law. It smacks of presumption of guilt and imposes severe restrictions on the respondents liberty where there has been no crime or criminal proceeding. The principle that one ought to be at liberty until found guilty of an offence is so well entrenched in our jurisprudence that it constitutes an element of fundamental justice. Unlike peace bonds and restraining orders which prevent the individual bound by it from enjoying specified legal activities and engaging in further unlawful activities, the measures set out in Bill C-55 subjects the individual to direct supervision by the state. The measures are more closely related to parole conditions than to anything else. It is obvious to anyone who has a working familiarity with Charter jurisprudence that Bill C-55 will die an instant death once it is enacted and implemented. The only explanation for the government's tableing of the bill is that they are hoping to steal fire from Preston Manning and his law and order zealots. Looked at this way, the idea seems laughable. Morton M. Goldmacher Barrister and Solicitor From elastic!lethe!gts!nypl!demon.uunet.ca!news.uunet.ca!hookup!newsfeed.dacom.co.kr!usenet.kornet.nm.kr!howland.erols.net!news.bbnplanet.com!cam-news-hub1.bbnplanet.com!news.idt.net!enews.sgi.com!ix.netcom.com!phase2.worldnet.att.net!uunet!in1.uu.net!news.interlog.com!news Thu Nov 28 20:13:18 1996 Xref: elastic can.general:66104 can.gov.general:2964 can.legal:11889 can.politics:106665 can.talk.guns:11213 Path: elastic!lethe!gts!nypl!demon.uunet.ca!news.uunet.ca!hookup!newsfeed.dacom.co.kr!usenet.kornet.nm.kr!howland.erols.net!news.bbnplanet.com!cam-news-hub1.bbnplanet.com!news.idt.net!enews.sgi.com!ix.netcom.com!phase2.worldnet.att.net!uunet!in1.uu.net!news.interlog.com!news From: alchemy@interlog.com (Morton M. Goldmacher) Newsgroups: can.talk.guns,can.politics,can.general,can.legal,can.gov.general Subject: Re: more detail on Bill C-55 (monitoring without being charged) Date: Tue, 26 Nov 1996 20:55:20 GMT Organization: Barrister and Solicitor Lines: 41 Message-ID: <57fb1e$ssb@news.interlog.com> References: <56smv0$9m2@tribune.usask.ca> <56sn84$9m2@tribune.usask.ca> <15380.32496.s0931bs@cwlib.cuug.ab.ca> <575ifr$ha@news.interlog.com> <57d8tc$i2a@bcarh8ab.bnr.ca> Reply-To: alchemy@interlog.com NNTP-Posting-Host: ip93-2.tor.interlog.com X-Newsreader: Forte Free Agent 1.0.82 glasgow@bnr.ca (Barry Glasgow) wrote: >But the lawyers wouldn't want that, eh ? >Be bad for business. After all, who cares if career criminals >cost society on average over 17 times the cost of their imprisonment ? >Just so long as the officers of the court are kept busy, right ? >And while we're at it, let's dream up a whole pile of other convoluted >and useless regulations meant to harass legitimate gun-owning citizens >just so that the lawyers can have a whole new line of business. >It's a good thing SOMEBODY in government is being zealous about this. >Somebody who's taken the side of the average Canadian who has had it >up to HERE with lawyers and lawyers-promoted-to-ministers screwing >around with the Justice system until it's been reduced to nothing >more than a treadmill for money-sucking lawyers and a revolving door >for their scum clients. Most Canadians would agree that society is kept free and safe by the application of laws. Most Canadian would also agree that individuals ought to have and enjoy basic human, civil and legal rights. Barry Glasgow is in a tiny minority who believe that law, government, and lawyers are a social blight and that we would be better off without them. Model societies like Somalia are glowing examples of nations that have no legal system and are better off without it. Without individual rights to get in the way, we could dispatch criminals to their death as they are apprehended and save thousands of dollars in every case. >"... the more I think about it, ol' Billie was right. > We should kill all the lawyers - kill 'em tonight." Anyone who publishes messages which encourages murder ought to be prohibited from owning dangerous weapons. Morton M. Goldmacher Barrister and Solicitor From elastic!lethe!gts!nypl!demon.uunet.ca!news.uunet.ca!hookup!newsfeed.dacom.co.kr!arclight.uoregon.edu!feed1.news.erols.com!howland.erols.net!newsfeed.internetmci.com!in1.uu.net!198.53.145.10!news2.interlog.com!news.interlog.com!news Fri Nov 29 22:08:00 1996 Xref: elastic can.legal:11969 can.taxes:4234 Path: elastic!lethe!gts!nypl!demon.uunet.ca!news.uunet.ca!hookup!newsfeed.dacom.co.kr!arclight.uoregon.edu!feed1.news.erols.com!howland.erols.net!newsfeed.internetmci.com!in1.uu.net!198.53.145.10!news2.interlog.com!news.interlog.com!news From: alchemy@interlog.com (Morton M. Goldmacher) Newsgroups: ncf.sigs.business.real-estate,can.legal,can.taxes Subject: Re: Citizen's right to self-representation in Tax Court Date: Thu, 28 Nov 1996 23:51:04 GMT Organization: Barrister and Solicitor Lines: 60 Message-ID: <57ku2e$p8l@news.interlog.com> References: <57knna$t17@freenet-news.carleton.ca> Reply-To: alchemy@interlog.com NNTP-Posting-Host: ip94-27.tor.interlog.com X-Newsreader: Forte Free Agent 1.0.82 cx172@FreeNet.Carleton.CA (Elat Lerner) wrote: >Despite voluminous lip service by government pamphlets about the >right of every Canadian taxpayer to appeal the decisions of >Revenue Canada, judging from my experience, if you donŐt have >access to high-priced lawyers, you can forget about all those >taxpayer rights you may, or may not have. >Without getting bogged down in a lot of detail this is what is >supposed to happen in Tax Court: > - Taxpayer gives evidence > - Taxpayer gets cross-examined on their evidence > - Taxpayer makes his legal case > - Government (represented by lawyer, of course) makes its > case > - Taxpayer gets a chance to rebut governmentŐs legal case >In real life this is not how it works. In my case the first 3 >steps took place, but the government lawyer did not present his >case, and of course I never got a chance to rebut an argument that >was never made. >What in fact happened, was that the judge (on the spot without >any warning) passed his judgment, without addressing any of the >points I had raised, and before the government lawyer got a chance >to make (or not) the case against me. As a result, I never had a >chance to point out the holes (if I may be so presumptuous) in the >governmentŐs argument. >Now, this is pure speculation on my part, but I am willing to bet >this would not have happened if I had legal representation. I >cannot imagine a judge making a decision against the appellant >without even listening to the respondent. In any legal proceeding the plaintiff/applicant/appellant/petitioner has the burden of making a prima facie case. If, at the conclusion of the applicant's case, the court/tribunal/board is of the opinion that the applicant did not make a prima facie case, the proceeding is terminated in favour of the defendant/respondent. For example, at the end of the Crown's case in a criminal matter the court may dismiss the charge prior to the defense's case. If you were represented by able counsel your case would have been complete before the Crown presented their case. It seems as if you did not touch on an important issue because you anticipated that the Crown would raise it in their case. You do not have a "right" to require that your adversary make submissions. As long as you have had the opportunity to make you case as fully as you might in your submissions you were not denied natural justice. Perhaps better counsel would have made a prima facie case, requiring the Crown to put their case forward. Morton M. Goldmacher Barrister and Solicitor From elastic!lethe!geac!onramp.ca!news2.insinc.net!news.iosphere.net!news.supernet.net!news.magicnet.net!feed1.news.erols.com!howland.erols.net!news.bbnplanet.com!cam-news-hub1.bbnplanet.com!uunet!in1.uu.net!world!srctran Tue Dec 3 07:41:34 1996 Xref: elastic misc.int-property:902 sci.electronics:24610 Newsgroups: misc.int-property,alt.inventors,sci.electronics Path: elastic!lethe!geac!onramp.ca!news2.insinc.net!news.iosphere.net!news.supernet.net!news.magicnet.net!feed1.news.erols.com!howland.erols.net!news.bbnplanet.com!cam-news-hub1.bbnplanet.com!uunet!in1.uu.net!world!srctran From: srctran@world.std.com (Gregory Aharonian) Subject: PATNEWS: Thomson CD patents invalid - $ 40 million/year at stake Message-ID: Organization: The World Public Access Internet, Brookline, MA Date: Tue, 26 Nov 1996 14:40:58 GMT Lines: 60 There is a patent suing strategy some companies use to put more pressure on potential licensees to sign a deal. That is, a company manages to sign a licence with a "name" (for example, E-data constantly touts that it got IBM to license E-data's patents, Elkins got Microsoft to license his patent), and then uses the credibility of that license to get others to pay more attention, which if the patents involved are of questionable validity, can be a useful tactic against smaller companies with less legal resources. Except when the smaller company decides to fight back. In 1994, Thomson S.A. (Paris, France) filed a lawsuit against five corporations, claiming that the companies infringed four Thomson patents dealing with optical memory / compact disk manufacturing technologies. Four of the companies, Bertelsmann, Thorn-EMI, Time Warner, and Nippon Columbia, settled out of court, agreeing to pay Thomson royalties (along with fourteen other companies not sued) of 3 cents on each compact disk, which for the 1.6 billion CDs produced last year gives Thomson a royalty stream in the range of $40,000,000 a year. Unfortunately for Thomson, one of the companies sued (and the smallest), DMI (Disc Manufacturing Inc, subsidiary of Quixote Corporation), decided to fight the patent. A few months ago, a jury ruled that based on PRIOR ART, that the Thomson patents are invalid. If upheld or not appealed, the jury decision could invalidate all of the licensing and royalty agreements that Thomson has signed, leading to a signficant loss of income for Thomson, especially as their patents might have been asserted against companies that will be manufacturing the next generation Digital Versatile Discs (DVDs). For DMI, the decision to fight the patents was simple, since being very SKILLED IN THE ART, they knew that the history of CD technology didn't support that Thomson's patents were NOVEL and UNOBVIOUS. According to Les Jezuit, president of Quixote, "....We had a strong sense of how the industry developed because of our technical involvement with compact discs that goes back to some of the earliest commercial ventures, and so we were able to assert a vigorous defense". The jury concurred, based on being informed about an earlier invention by MCA that was shown to exist before Thomson filed its patent application. I am guessing that similarly E-data's patent, Elkin's patent, Billing's patent and many others (whose cases are not public), will also be invalidated based on prior art. Given that other electronics/computing patents such as the Compton's and the Bunny Rabbit patents were invalidated by the PTO, it is not much of a stretch to say that given an ample patent-busting search budget whose results are handled by a good litigator, that at least 50% of the electronics/computing patents would be found invalid, especially given the pathetic amount of non-patent prior art being submitted. Tomorrow I will report on a Wall Street Journal article that discusses how insurance monies are providing a growing stream of funding for companies to sue others for patent infringement. Along with investment pools being formed on Wall Street to invest in patents, these money sources should lead to an increase in the rate of patent infringement lawsuits being filed in the electronics industries, especially anything relating to electronic commerce and interactive entertainment. Unfortunately, because of the PTO/patent bar's ongoing refusal to seriously treat the prior art handling problems, the flood of invalid patents will continue to issue, costing industry tons of money to invalidate patents that never should have issued. Greg Aharonian Internet Patent News Service From elastic!lethe!geac!onramp.ca!news2.insinc.net!news1.econnect.ca!clio.trends.ca!news1.bellglobal.com!sunqbc.risq.net!newsflash.concordia.ca!newsfeed.pitt.edu!nntp.club.cc.cmu.edu!casaba.srv.cs.cmu.edu!das-news2.harvard.edu!fas-news.harvard.edu!hls-silversm.student.harvard.edu!user Mon Dec 9 21:59:15 1996 Xref: elastic misc.legal:20470 talk.politics:14798 talk.politics.libertarian:108491 talk.politics.misc:223298 Path: elastic!lethe!geac!onramp.ca!news2.insinc.net!news1.econnect.ca!clio.trends.ca!news1.bellglobal.com!sunqbc.risq.net!newsflash.concordia.ca!newsfeed.pitt.edu!nntp.club.cc.cmu.edu!casaba.srv.cs.cmu.edu!das-news2.harvard.edu!fas-news.harvard.edu!hls-silversm.student.harvard.edu!user From: silversm@law.harvard.edu (Jol Silversmith) Newsgroups: misc.legal,alt.politics.usa.republican,talk.politics,talk.politics.misc,alt.rush-limbaugh,talk.politics.libertarian,alt.society.civil-liberty,alt.activism,alt.politics.reform,alt.politics.correct,alt.society.sovereign Subject: Re: State Citizenship "how do you define right-wing?" Date: Tue, 03 Dec 1996 17:05:00 -0500 Organization: Harvard Law School Lines: 49 Message-ID: References: NNTP-Posting-Host: hls-silversm.student.harvard.edu In article , stargazr@mindspring.com (Robert Miller) wrote: > How do you define right-wing? Anybody or anything 6 inches to the > right of yourself? Reviewing my posts over the past couple of years, here are the circumstances in which I have used the term "right-wing." 1) Posts that misread or miscite the Constitution, case law, or other legal materials in order to claim that the federal government is currently operating beyond its permissible powers or is otherwise incorrectly structured (i.e. claims that the Titles of Nobility Amendment was ratified; that the states are sovereign principles to a constitutional contract; that the Iron Mountain Plan is a real government document; that the Fourteenth Amendment was not ratified; that the Third Amendment has never been tested in court; that treaties can circumvent the Constitution; that courts have ruled that the Second Amendment is not part of the Bill of Rights; that the Declarrtion of Independence is an enforceable document; etc., etc., etc.). One of the best examples of this sort of right-wing lunacy in fact was your post on 08/15/96 that claimed that, based on Adkins v. Children's Hospital, 261 U.S. 525, 545 (1923), your labor is your personal property. Of course, this case was explicitly overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) 2) Less often, posts that misread or miscite the U.N. Charter, case law, or other legal materials in order to claim that the U.N. is a threat to the U.S. (i.e. that the U.N. ordered the dismissal of Douglas MacArthur during the Korean Conflict; that the U.N. controlled military operations during the Korean Conflict; that the U.N. Charter has replaced the Constitution; etc., etc., etc.). 3) Once, a post claiming that the 1993 suicide of a DC councilmember was tied to President Clinton because it was otherwise inexplicible (the councilmember had a history of mental illness, marital strife, and job stress, had previously attempted sucide, was under medical treatment for depression, etc., etc., etc.). Which is not to say that these are the only circumstances under which I would use the term "right wing." But it should be clear that I have reserved it for absurd arguments directed against "big government" or institutions described (by others) as "left wing" which lack any credible foundation. -- Jol Andrew Silversmith __________________________ silversm@law.harvard.edu http://www.nyx.net/~jsilvers/home.html __________________ jsilvers@nyx.net