Law – Page 10 – A Good Beer Blog

Click Fraud Revisited

I just noticed this article on click fraud in Wired care of Boing and found a very odd thing – a moral argument for the rights of property holders:

By splitting revenue with the sites that host the ads, search engines have become, in effect, the Internet’s venture capitalists, funding the content that attracts people to the computer screen. Unlike the VCs who backed the boom-era Internet, search engines now provide revenue to thousands of wildly diverse sites at little up-front cost to them – PPC advertising is one of the few income sources available to bloggers, for instance. If rampant click fraud overwhelms the system, it will muffle the Internet’s fabulous cacophony of voices.

I don’t know how click fraud actually qualifies as fraud in the legal sense. I don’t know of a crime being committed or a contracual relationship being breached. The main example given in the story is one of extorsion, the threatening of Google with release of a autobot clickotron unless payment was made. Sadder still is the illustration of slogs – spam blogs – who exists only to generate traffic click throughs for a wee cheque:

Thousands of splogs exist, snarling the blogosphere – and the search engines that index it – in spam. Splogs are too profitable to be readily discouraged. According to RSS to Blog, a Brooklyn-based firm that sells automatic-blog software, sploggers can earn tens of thousands of dollars a month in PPC income, all without any human effort.

Imagine. Vacuous blogs created for alternative purpose. Whoda thunk it? The problem, of course, is the seduction of the technology generally and what it does to one’s thinking and one’s ethics. How much different is the new economic moral thinking compared to, say, actual legal regulations like copyright and the intellectual property of others. Is it because this clicky activity undermines the beloved as opposed to the actual rights of others? It is primarily the violation of the new moral crime against technological advance that is decried by Wired – we have a new plan that demands new thinking, new commerce and new crimes for the old thinkers…and we will tell you what the new thinking is after we get to it, thank you very much.

Isn’t the real problem the false valuation? Isn’t it incumbant on a firm presenting a new mode of advertising to prove its effectiveness in the marketplace as a mechanism for setting the price? Is it that the clicks are invalid or is it the mechanism which clicks which is. Isn’t the real question whether a click ad represents or ever represented value for money. Interesting to note that the one realistic alternative mentioned is micro-payments…about ten years after they were laughed away by the new think.

Japan Freaks Out

I couldn’t think of anything else to say about this news from that bastion of democracy somewhere below your toes:

Most foreigners visiting Japan would be photographed and fingerprinted under controversial legislation approved Tuesday by the country’s cabinet. Children under 16, diplomats and permanent residents — such as ethnic Koreans born in Japan — would be exempt from the requirements. The government wants the bill voted into law during the current session of parliament, which ends on June 18. If the law is adopted, advance lists of passengers and crew members would also be required for all airplanes and ships arriving in Japan.

Yumpin’ Yimminy! Strike another country off my list of places to visit. I say we make each Japanese traveller do tongue twisters upon landing in Canada. Or jumping jacks. It will be of about as much use and will be more entertaining.

My Leonard Cohen

It was quite sad to hear about Leonard Cohen finding himself in something approaching a view of the poor house due to a legal dispute in this era when he should be being dipped in gold as a national treasure. And I don’t even like his songs that much. I do like, however, what he stands for as a symbol of individual autonomy to make the world the poem that you see it to be. So it was good to read this in the Globe this morning:

A judge with Los Angeles County Superior Court has granted Leonard Cohen a default judgment of $9-million (U.S.) against the Canadian singer-songwriter’s former manager. Judge Kenneth Freeman made the ruling earlier this week in response to a civil suit Cohen filed last August alleging fraud, negligence and breaches of contract and fiduciary duty on the part of Kelley Lynch, who served as his business manager from early 1988 through October, 2004…The Montreal-born Cohen, 71, has alleged that Lynch over eight years had siphoned off more than $5-million of his savings, so that by late 2004 his retirement nest egg had been reduced to about $150,000. Westin, now teaching law at the University of Kentucky in Lexington, was named in the claim because Cohen alleged that Westin helped Lynch with the $12-million sale of both Cohen’s music-publishing company and artist royalties. Most of these proceeds went into a Lynch-created company, Traditional Holdings, of which Lynch had 99.5 per cent ownership.

Apparently he has settled out of court with other money grubbers. Good. But why do I like him so much but not really his music? I do recall a documentary on his likely 20 years ago when he was having new fame with the Famous Blue Raincoat CD and it was done in his apartment in Montreal that looked like a normal sort of apartment except that everything was white. He said something to the effect it made the outside more a part of the inside. Then I got to like him more when he won a Juno for singer of the year and he said only in Canada could his voice win singer of the year. But best of all was his stumping of Gzowsky the ultimate but early beacon of political correctness and all that is wrong with that when Cohen said he was stopping his European tour early. Why, says, Gzowsky. Can’t afford the wine. Gzowsky stammered. When you drink 3 or 4 bottles a day, Cohen goes on, you need to buy the increasingly really good stuff and as this tour was so much longer than he had done before he was buying bottles now each worth thousands and that was costing more than the tour was bringing in. Gzowsky stammered some more.

When I was a kid in the poorer and plainer Maritimes you assumed everyone in Montreal was like Cohen – cooler, smarter and looking better in black while knowing where the best window to look out of while drinking coffee could be found. You felt that your friends from Nova Scotia who got jobs or went to university in Toronto sold their soul; people from Nova Scotia who got to Montreal would wind up like or even be pals with Leonard Cohen. His expression of that sort of style of the international man was something that added to Canadian-ness in a way that equalled all the canoes. Good to see that he will now have his wine and black turtleneck expenses covered off in his reclining years.

Child Care Math

I am still trying to figure out the Harper plan for child care and, without getting political just now, just want to make sure I have the math right. So this is what I understand today:

32,805,041 Canadians
2,057,848 Canadians 5 and under
6.27% of Canadian population is under six and eligible
There are roughly 116,000 people in Kingston
6.27% x 116,000 = 7,273 people in Kingston 5 and under
7,273 x 1,200 per year per child 5 and under = $8,607,600 per year

Is that right? I keep doing the math and it seems to be. While I do understand (though do not agree with) the policy of stopping public child care expansion, the new evil for our new rural overlords’ social theorists, but I do not understand doing so at a cost of around 400% the cost of that increased public child care, as this morning’s Whig-Standard illustrates for Kingston:

Under the scheme, Kingston and Frontenac County were to get millions annually in federal money to create new child care spaces, improve services in schools and provide more early intervention programs for children in need. The city has the first-year funding, $2.32 million, in the bank, but has not yet spent any of the cash. We’ve got the money and we’re not giving it back,” Lance Thurston, Kingston’s commissioner of community development services, said in an interview yesterday. Thurston said the outgoing Liberal administration knew that a policy shift might come after the election, so they passed on the cash some time ago.

So if the Federal Government’s plan costs four times as much and takes away the realistic ability to provide more child care spaces – what does it actually provide? It doesn’t create a level playing field as the people that don’t need it still don’t get it – only those that do need it lose. In return every little kid gets some money in pocket that will not add up to child care or any thing else other than 25 bucks more a week for groceries for toddlers. Was there a suffering in the nation? Was there a mischief to be corrected through increasing spending 400%? Did every toddler need 25 bucks more? How is this not like a promise of free mustard for all when some people need food? Keep you danged mustard. Any why should I pay for the mustard of others through my tax dollars anyway? Let folks buy their own mustard. Except if you can’t afford mustard. But our new rural overlords do not like that idea so much. Prairie mustard farmers vote conservative for the most part.

So please correct me if you can but I still just don’t get this at all. And saying Tory bad or Liberal bad is not helping anything.

Soon No More Home And Garden TV

As the new ditigal TV world starts to nudge above the horizon, it is good to see the CTRC do something useful short of the dream of its own extinguishment. As some point before I leave this mortal coil, I may be able to buy cable TV without the 34 channels I never never never watch:

As the industry shifts from analog to digital transmission, which provides a high-definition TV signal through a set-top box, cable companies have sought to sell channels individually. However, in a show of support for analog cable networks concerned that their audiences may plunge, the CRTC said the tiered system must be kept in place on digital cable until 2013. If cable providers have transferred more than 85 per cent of their subscribers to digital after 2010, that system can be dropped. The tiers have often frustrated consumers who would like certain stations but do not want to be pay for those they don’t want…While Canadian regulators are making the shift from analog to digital cable over a broader period of time, the U.S. government has more aggressive plans, setting a Feb. 17, 2009, deadline to end analog TV broadcasts.

The next step of course is allowing any channel broadcast anywhere in the world to be available to me. All I want is the right to watch TV from India or Fiji as I have been able to listen to their radio through the miracle of the international broadcast bands of shortwave radio. You can tell by my internationalist style around these parts.

Friday Chat-A-Rama

Stumped no more. Shoeless Jones left a very wise if brief comment:

There is more to life than the three Bs; beer, baseball and bullshit!

That is true. Friday has become the highlight of the week chez nous for the inexplicable reason (say that like Daffy Duck) of the mere use of bullets rather than posts. As the coffee drips in the pot and soon into the brain I write:

The TV ratings for the Winter Olympics are apparently going to be the worst since 1906. It makes sense to me. I have not sat and gawked at the glowing screen and thin folk in lycra once. This weekend we are even going into enemy territory to catch the SLU v. Yale mens hockey game at Canton and then on to Oswego where they may not even have CBC on the cable system. Just Al Michaels. The horror. The horror. He even contextualizes this man to a degree. Fortunately, our hat, illustrated, is doing well:

“We’ve replenished our stock twice already,” said a frazzled Kristina Panko, a service manager for HBC in Sudbury brought to Turin to work the B.C. House branch. “The hat’s so popular because it’s such an obvious symbol of Canada. But even at home, when I called the other day, they told me the stores had sold out.” The trapper hat is the “it” item of jock – and pseudo-jock – apparel in Turin. “It’s the trendy item of the Games,” said Curtis Runions, a 27-year-old native of Kingston, Ont., who has come to town from England, where he’s a high school teacher, to watch some hockey. “Maybe the fad will pass, like it did with the newsboy hats in Nagano, when everybody had one. But right now it’s the thing to have.”

More sports of all kinds on Deadspin, my new joke-stealing source.
It is also true about Fridays. Friday used to be a statistical dead zone and I could never figure out why there would be an 80% drop in activity. Given that bots never sleep, this was weird as I would ahve though Friday was the idlest day of all. Not for me…others…that’s it. And there have been other shifts in the stats. I used to get up to 12,000 visits a day from 1,600 to 2,000 visitors. Now I get 7,500 visits from 2,000 to 2,500 visitors. I have no idea what it means. I have heard a few references to last August (when GX40 numbers hit a peak) as the top month for others. Maybe that was the crest of the blogosphere. Just a few comments to 50,000, by the way.
On the three Bs mentioned above, there is lots of stuff that never gets written down here that falls into the categories of family and work. I think that it is prudent but also I generally like to make up stuff so that no one can really call me out on any particular fact. So while I try to write daily, it is not as fact based as, say, John Gushue’s excellent Dot Dot Dot, as excellent a radio reference as there ever was.
I am as state pro-bureaucracy as they come in the sense I am not a knee-jerker against public money going to public needs through public service. [Ed.: Yes, I know…how did we ever get the class “D” bloggers license?] I believed this consistently when I was in the self-aggrandizing private sector. Yet…there is this thing called the CRTC and I have learned, if this is possible, to love them less this morning:

The CRTC said yesterday that Canadian telephone customers have been overbilled to the tune of $652.7-million over the past few years, but the money will not be going back to them. The federal regulator ruled instead that telecommunications companies such as Bell Canada and Telus Corp. should use most of the money — equivalent to about $50 a customer — to expand offerings in underserved markets, primarily rural and remote communities.

I want my fifty bucks, please. MY fifty bucks.
I like Jean Charest. I think he is going to go to junior partner in a 2 person caucus in 1993 to one of the great players in whatever changes are going to occur in Canada. Note this in the Globe:

In the recent election campaign, Mr. Harper promised Canadians that he would work with the premiers to develop a guarantee on patient waiting times ensuring that Canadians receive essential treatment within clinically acceptable time frames. The cost of the pledge, said Mr. Harper, would have to be borne by the provinces under former prime minister Paul Martin’s $41-billion, 10-year plan for health care, signed in 2004. Yesterday, however, the Quebec Premier made it clear that he doesn’t expect to pick up the cost of his provincial program on his own. The gauntlet now dropped, Mr. Harper will have to decide whether to modify his promise and help pay for the program, or bite the bullet and disappoint Quebec, and probably other provinces, too.

Good job. We all didn’t sign up for Team Stevie. 63.5% didn’t. I think we are going to look to the premiers as much as the opposition in the House to hold them to account.

There. That is a start. Chat dammit chat.

Day Fifty-Five: Election Blogging On Monday

Interesting to note discussion of the wording of section 329 of the Canada Elections Act:

Prohibition — premature transmission of results

329. No person shall transmit the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district.

Pretty clear that blogging is transmission but is reporting popular vote at a national level? That is not the vote in an electoral district but it is a aggregation of votes and votes are only cast in electoral districts. This handy dandy timeline explains the back story and here is the May 2005 ruling from the BC Court of Appeal on the constitutionality of the transmission ban in s. 329. Here is the nub:

[59] In my opinion, when the s. 329 publication ban is seen as having the same purpose or objective as the staggered voting hours, that is, to eliminate the information imbalance that can result from disclosure of results before all of the polls have closed, the respondent’s argument concerning the lack of evidence to support the ban falls away.

[60] One of the contextual factors referred to in Harper was the apprehension of harm in relation to the electoral process. While the Lortie Commission Report stated that the availability of election results in Newfoundland and the Maritimes before the close of the polls in western Canada was not of “great concern”, assuming staggered voting hours were in place, it was clearly open to Parliament to decide what measures to adopt in meeting public concerns about the information imbalance. Parliament chose to implement the solution of staggered voting hours but also chose to maintain the publication ban on election results. Public perception of electoral fairness is obviously critical in a democracy. Given the extent of the public concern the Commission had identified about voter information imbalance, Parliament’s choice to leave the ban in place appears to me to be unremarkable.

[61] In determining that the Attorney General had failed to demonstrate by the evidence adduced that the objective of the s. 329 ban was pressing and substantial, it appears to me that the appeal judge overlooked the findings of the Lortie Commission about the very large percentage of Canadians who had expressed concern about information imbalance coupled with perceptions of electoral unfairness. In my opinion, this was not a case in which scientific proof of harm was required to justify the limitation on freedom of expression. What was required, and what the trial judge had before him, was evidence from which it could be inferred that there was a reasoned apprehension of harm to the legitimacy of the electoral regime if the publication ban, aimed at preventing information imbalance, was not continued.

[62] I note as well that McLachlin C.J.C., for herself and Major J, dissenting on the third party spending issue in Harper, agreed that the promotion of electoral fairness was a pressing and substantial objective. Her observations respecting the characterization of electoral fairness as a pressing and substantial concern are instructive in the present context (at para. 26):

Common sense dictates that promoting electoral fairness is a pressing and substantial objective in our liberal democracy, even in the absence of evidence that past elections have been unfair; see Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876, at para. 38. A theoretical objective asserted as pressing and substantial is sufficient for purposes of the s. 1 justification analysis; see Thomson Newspapers, supra, at para. 38; Harvey, supra, at para. 38; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 191; McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 281; Edmonton Journal [Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326], at pp. 1343-45.

[63] Two of the other important contextual factors that need to be considered in this case are the nature of the expression the s. 329 ban limits and the period of time during which the ban operates. I agree with the appeal judge’s description of the type of expression being limited by the ban as falling “at the margins of political speech”. The ban in issue here is directed at information about election results and is intended to operate for only a brief period. The nature of the expression to which the ban applies and the brief time period in which the ban operates does not limit participation in political debate.

[64] It is convenient to note here that the respondent submitted that the ban in s. 329 is now obsolete because the advent of such things as satellite and cable television and the Internet makes enforcement difficult, if not impossible. He referred to some passages in the Lortie Commission Report to support his argument. In my view, difficulty in enforcement of the publication ban is irrelevant to the constitutional question. Many criminal and quasi-criminal offences are difficult to enforce but that does not mean that Parliament ought not to make them offences. The fact that the ban may be violated does not logically lead to the conclusion that the information imbalance between voters the ban seeks to remedy is not pressing and substantial. I would not accede to the argument that the relative ease by which the ban may be violated demands its constitutional demise.

Mind your step tomorrow.

Day Fifty-Two: Activitist Judges

There is nothing more embarassing about human existence that the principle “if you say enough, it it will be true”. No greater example of this exists than the phrase “activist judges” which has been successfully shoved into the parlance by axe-grinders. Sadly, though not unexpectedly, the current poll leader in the Federal election has trotted out this sham:

Stephen Harper says some judges appointed by the federal Liberals are activists working to promote their own social agendas, statements that drew heavily from his tenure in the old Reform and Canadian Alliance parties. The assertions by the Conservative Leader, whose party leads the public opinion polls, mark one of the few times during a tightly scripted election campaign that he has strayed far from the centre of the political highway.

A thinking person’s first response to this ought to be somewhat similar to hearing that our Foreign-Minister-in-Waiting, Stocky, will have difficulty dealing with visits to Kenya giving their obviously heretical and slanderous position on the meaning of the Rift Valley’s contents.

How is it that claims of a secret agenda of the right is a farce but the secret agenda of judges is lapped up by the willing and the weak? How is it that one part of the constitutional structure can so misrepresent another part of it and not be labelled as disloyal to the core by traditionalists (not to mention the sentient) as finger-pointery folk offer up freely for anyone who suggests, say, that Arctic paratrooper capability as a defence against sub-ice-cap submarines might not be the best use of military resources? It is clear from all objective considerations that, by body count at least but more so the right to hit the brakes, the responsible authors of constitutional change brought on by the Charter of Rights and Freedoms were the mainly conservative premiers who signed up for it and did so rightly as it expresses the complex nature of Canadian democracy and details it more and more as it is unfolds through each ruling. The courts, in doing so, play the role demanded of it with honour and intelligence (but without political pressure though as humans) through the combination of the facts of its historical constitutional existence and the task asked of it by the legislators.

“Activist judge” is just another way of saying “person who disagrees with me”. Shammery and wilful blindness from the same folk who would restructure the Senate to actually give it power and distribute that power unequally to the low population zones of the nation. Another step by a political minority seeking to remake the nation and impose it on the rest of us. You have to at least admire their gall.

Day Forty-Five: The Bill Of Rights

A couple of conservative bloggers got me thinking. This in tiself has me a bit worried but we are all working towards that grand CPC/NDP coalition…right? Right?

The Liberal Party has voiced opposition to the entrenchment of property rights in The Charter of Rights and Freedoms, Canada’s primary constitutional document defining the limits of how far any part of the state can intrude on the rights of individuals – relying, oddly, in part of a heretofore unknown creature, the prominent blogger.
The Liberal party has run the Federal government for the last 13 or so years and for the best part of the preceding decades of Canadian existence and should have a sense of the powers which were entrusted to it.
on 10 August 1960 The Bill of Rights received Royal Assent. It contains the following provision:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
The next section of The Bill of Rights has a very interesting provision:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared…

This section means that the laws of the Federal Goverment need to comply with The Bill of Rights. In this sense, like a piece of human rights legislation or an Interpretation Act, The Bill or Rights is quasi-constitutional. Not quite as over-riding as the Constitution but one that demands compliance within its sphere of influence. We learn that in section 5(2) which defines “law of Canada” as follows:

The expression “law of Canada” in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada.

A somewhat broad definition limited only as follows in 5(3):

The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the Parliament of Canada.
Although rather ineffective as an instrument of societal change and even though it was overshadowed The Charter of Rights and Freedoms came in twenty-one years later, The Bill of Rights continues to apply in law for certain purposes. While the Supreme Court of Canada held in the Anderson case in 2003 that The Bill of Rights could not provide protection for certain injured and ill veterans and their families against legislated expropriation without hearing, it did confirm section 1(a) continues to exist:

…The Bill of Rights guarantees notice and some opportunity to contest a governmental deprivation of property rights only in the context of an adjudication of that person’s rights and obligations before a court or tribunal.

So not everything but something. The court stated that where no adjudicative procedure is necessary for the non-discretionary application of a law, the provision provides no benefit and the court illustrates this with the example that a taxpayer could not claim procedural protections against a change in income tax rates that adversely affected him.

What I think this all means is that where a Federal law sets out a process for deprivation of properly it must be due process and provide certain procedural rights such as fairness. Where, however, the act in question is not delegated but imposed directy by the Parliament itself there is no benefit of The Bill of Rights because of that pesky word “enacted” highlighted in bold above. The protections of the Charter get into the “enactment” of a statute and that is the difference. Hence the practical uselessness of The Bill of Rights as a tool against the legislated fiat such as in Anderson.

So when the Liberals say that placing property rights in the Constitution “would dismantle Canada’s social safety net” it might be fair to say that it would do so if there was some anticipatible consequence in a Court ruling supporting a previously unentrenched property right lurking there in The Bill of Rights. All The Bill of Rights can do is ensure the Federal Government must uphold property rights in its delegated processes. In other cases, the Federal Government and the provinces would need to agree to put property rights in the Charter at risk of unacceptable outcomes. But in that case, there is alway section 33 of the Charter and the notwithstanding clause. Right?

Day Three: What Phoney Campaign?

You didn’t think I was going to do this every day, did you? I couldn’t imagine pretending there was something of interest in every day of the campaign. But yesterday there was.

The Conservative’s call for a public prosecutor is very interesting. It places the accountability argument into the procedural realm which ought to be a yawner but it makes the issue of scandal not about what occurred but how it was treated. Nova Scotia has had a public prosecutor since the need to keep the Progressive Conservative Buchanan government in line became so obvious after so many of them were charged for this crime or that while in office. One wonders if the Saskatchwan Tories of Grant Devine might have better kept their hands out of the cookie jar had a public prosecutor been in place.

The idea also need not be limited to alleged crimes by those in office. In Scotland an office exists called the Procurator Fiscal which I understand is independent of both the police and the prosecutors and which determines if a criminal charge is warranted or not. They also handle complaints against the police. Similarly in the US there are grand juries, consisting of members of the public, who have to be told by the prosecutors of the charges and convinced that a proceeding should go on.

So Harper’s idea of an intermediary between the police investigation and a bringing of an accused to trial is both useful, tried and true and essentially neutral. Politically it is inordinately astute. How can you argue against it?