Tag: Law

Heist!

art has a message and the message here is I am a rich bastardI noticed at The Star this morning that there was an art theft thisweekend in Toronto – a heist. Is there any other crime which so warms the heart what with unending bad 70’s police TV episodes guest starring the likes of George Peppard centering on the thievery of art.

But why these things? Likely because they are literally pocketable and worth millions. Like Stalin’s retention of the great czarist buildings, our relationship to the image is not so simple. This is the face of another polticial era, that of the tyrant. This man never lifted a shovel or pen, a product of solely the power of inheritance. Google the name. The figure, Charles Mordant, left the world nothing of note other than this nasty, purse lipped, bloated face under a ridiculous wig, a symbol of virility affordable and wearable only by the wealthy and unvirile.

Later: Recalling that Google sucks, I did some more digging on the lost art and found this at the AGO’s web site:

Portrait of Charles Mordant, 3rd Earl of Peterborough and 1st Early Monmouth of the second creation (1658-1735)
Made by David Le Marchand (1674-1726) between 1704 and 1713
French, active in England
Ivory
Inscribed with artist’s monogram on front center of panel beneath truncation: ‘D.L.M.’
21.6 cm ht.; 17.8 cm w.; 5.1 cm d. ( 8 ½ x 6 ½”)

Hmm, doesn’t help that the AGO spells his name differently from other records which refer to Charles “Mordaunt” as the 3rd Earl of Peterborough. Here are records for five portraits of him at the National Portrait Gallery in London. He was an ambassador with an unhappy diverse career and private life as pointed out by notes to these portraits:

Admiral, general and diplomatist. A vehement whig and a supporter of William III until his ejection from political office in 1697 and imprisonment in the Tower. As General of the expeditionary force to Spain in 1705, he fought a controversial but largely successful campaign…

Here seen shortly after his return from serving as British ambassador to the Duke of Savoy, and his final fall from royal favour. The last of Kneller’s four portraits of the sitter….

Title: ‘Hon Mrs F- and Incautious Lothario’ (Charles Mordaunt, 3rd Earl of Peterborough; Mrs Edward Foley)…

I am now starting to warm to the jerk. Voltaire was his guest for 3 weeks in 1727. He was perhaps the first to cultivate fennel in England. A Colonel of the Royal Horse Guards in 1712 He has a slim but curious relationship to Nova Scotia’s Oak Island gold. He died on board his yacht off Lisbon 25 Oct 1735, is buried Turvey, Beds, 21 Nov 1735 and is the great-great-great-great-great-great-great-great grandfather of Camilla Parker-Bowles, Prince Chuck’s fancy lady. Cooling off again…

Blackness

Another Black day? What other wacky puns can be drawn from the slide Connie finds himself on? Nicest new touch?

Hollinger International also launched a lawsuit claiming $200 million US against Black, his right-hand man David Radler and companies controlled by the two men.

I’d be all scowlly, too. Unlike most lives his hand has influenced, a relative of mine actually benefitted at one stage of his life amongst acquisitions of the yellow presses by Black. For that we thank you, Big Con, for the extra ale change and Thomas the Tank Engine budget. Few and far between in the case of an anti-capitalist like Black. A capitalist uses capital to create wealth. Where he made money, Black split and sold off capital, a scavenger creating his own carrion – a denial of the power of asset. Where he did not make money, he was running newspapers (now removed from him and soon in the hands of others maybe themselves of that ilk) and making himself the cartoon-like semblence of an important person he willed himself into being. Nothing illegal in any of that. Make yourself as you wish, I say, and answer to your Maker for your choices. He is in deeper water now, though, than just being thought pompous and tedious. What is he worth compared to the charges and claims he faces? This glory-days-era site has him as follows:

Conrad Black, chairman and CEO [net worth (1995): $302.6-million, making him the 28th richest person or family in Canada (Financial Post Magazine, January, 1996)]

I sure hope, but doubt on a net basis, that he is better off the noo compared to eight nine years ago as these law suits will be just beginning and a few hundred million Canuck will not go far if even these first claims are founded.   Why, by the way, do some Canadian media call him Lord Black anyway. It is a foreign title system in which we do not participate. Would we really call her Lady Thatcher? Lord Heath? Doubt it – well maybe if she were shouting at me. Well, good thing you can make a buck selling a title, too. He may need it all. Good luck to you, Connie! We’re all going to learn a whole lot about you over the next few years as the ugly spectacle of a breach of fiduciary duty by corporate director – or whatever is actually alleged – unfolds.

Bizzare Call to Stop Innovating

The best way to ensure nothing new happens is to make that a principle, as Dave Winer has advocated:

Productive open work will only result in standards as long as the parties involved strive to follow prior art in every way possible. Gratuitous innovation is when the standardization process ends, and usually that happens quickly. Think about the process of arriving at a standard. Someone goes first with something new. Assume it catches on and becomes popular. Because the person did it in an open way, with no patents, or other barriers to competitors using the technology, a second developer decides to do the same thing. The innovator supports this, because he or she wants a standard to develop. At that point the second person has the power to decide how strong a standard it will be. If the new implementation strives to work exactly as the original does, then it’s more likely the standard will be strong, and there will be a vibrant market around it. But if the second party decides to use the concept but not be technically compatible, it will be a weak standard.


Read Winers whole statement here.

As soon as rules outside of the marketplace of ideas are made which guard against innovation, advances stodge and we are stuck with innovations led only by those who advocate conservativism. We are witnessing an effort again now to control change on the web by a few as we did with Microsoft in the 1990s. There is an interesting analogy to a point in legal history in the 1800’s in which logical innovations such as negligence were held back by capitalists who did not want to be held accountable under civil law for the accidents caused by industrialization. The same theme is seen now in the rejection of criminal sanctions for industrial polluters.

A call to control of standards is foremost a call to “follow and pay me” to tell you what you what you can figure out yourselves.

If you want to be led, listen to self-appointed leaders aka “gurus” – a word which should be seen as a slander. If you want the best, unleash the innovative.

Biometric Day

Yesterday was very biometric:

  • The date for my seminar with the Surveillance Project at Queens was reset for later this month. I am going to talk about my thesis on the constitutionality of automated biometric surveillance and the recent cases on the liberty right in section 7 of The Charter of Rights and Freedoms;
  • The US confirmed that we need to get the new biometric passorts before October. I, too have no problem with this as it is not my country.
  • On West Wing the nutty DARPA (not ARPA) character in the Hawaiian shirt admitted to spokesperson lady that they were doing biometric studies within government on the biometrics of citizens. [It was very well described in the script.]   And she was shocked at the imposition on the US Bill of Rights.

Neato. Gaff and gaaf. Spelling has yet to settle on that one.

ISSNs and Personal Websites

I had an interesting set of exchanges today on the topic of the ISSN. I noted a few days ago that Steve’s site had an ISSN or international standard serial number – scroll down lower left to see it. Wanting all that Steve has, I applied for my own. This morning I received a nice email which stated:

Thank you for your application. At the moment, we are no longer assigning ISSN to weblogs, but the situation is under review. The question of whether weblogs will be able to be assigned ISSN is under discussion in the international ISSN Network. The question hinges on the scope of the ISSN but also on the very real consideration of the limited staff resources of ISSN centres worldwide.

In further emailing I learned that the global ISSN system is run out of Paris; that last October they put the halt on listing new personal web pages, web logs or blogs under ISSN; that the ISBN system relating to books does not apply; and that there are global meetings in Paris from time to time on the ISSN system. Very neato.

The person with whom I was having this conversation then went to the effort of called me at work after tracking me to my house. Apparently there are only two staff at the National Library of Canada who administer the ISSN system in the country and they have been overwhelmed by requests for blog registrations particularly – but apparently inadvertantly – after this posting by a Joe Clark who Steve (of the now coveted ISSN) knows as an web accessability writer.  I suggested that I might help the National Library of Canada and its application crunch by way of a post to this old ‘osphere.

There is an answer, however, to the nerd who want another registration number in their life. While my helpful friend in the National Library of Canada ISSN office, who will go unnamed (even though there is a 50% chance of you guessing which one it was) indicated that ISSNs for web blogs get you little but are a real headache, the good folk at CIPO will take 50 bucks on line for a one-time registration of Canadian personal web sites under the Copyright Act. While copyright is inherent in that it arises with the act of writing, registration provides proof of the fact of your writing as of the time registered. This still allows you to grant Creative Commons licenses at all that as they are licenses granted under copyright interest to your own works.   Plus you are paying so can expect you are providing for the resources you are using. 

Consider the lot of the poor ISSN registration worker. The ISSN has now registered over 755,000 serial titles worldwide and grows at an annual rate of about 50,000 new listings.  As a reult,  even though the Guardian recently pointed out that of the 4 million things called blogs, only 50,000 are updated daily, the scale of blogs to periodic serials is clearly daunting and, for two librarians kind enought to pick up the phone, overwhelming.    Let them be, oh bloggers, let them be!    Then lobby Paul Martin for more funding for the National Library.

Spam as Crime

I noticed this over at Will’s: Bill C-460, An Act to Amend the Criminal Code (Unsolicited Electronic Mail). Sure we all hate spam but this is too much:

  • It is too late. Email is lost. Why criminalize activity in a medium which constitutes more than 50% of activity on the medium. You may as well outlaw cross-posting on Usenet.

  • Is spamming really a crime? What gets to be crime? Not just bad things.

  • The offenses are insane. Up to a quarter million dollars and/or two years for a first offence.

Have a look at a real data related Canadian criminal code provision, s. 181:

Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

This section actually addresses the wrong – “that causes or is likely to cause injury or mischief to a public interest” – and caps the maximum imprisonment at two years. Under C-460 a second offence can get you five years and there is no requirement to do any harm.   Maybe I have lived a charmed life but I in my seven years as a web nerd have never seen a “sexually explicit pop-up”. Do they exist? Apparently he is a commando in the fight to combat what he terms commercial “cyber wars” with crime control credentials.

Don’t worry. It is only a private member’s bill so has gone nowhere, it’s natural destiny. It was the efforts of Mel’s local MP, Dan McTeague, who apparently believes the annoying and vulgar should be criminalized. Most of my friends are annoying and vulgar.   McTeague appears to be the only Liberal in Canada not to be a cabinet minister under either Chretien or Martin.

The Dope

[What a dumb pun.]

So the Supreme Court spoke this morning in the case R. v. Clay and marijuana smoking is not a constitutional right – but only on a 6-3 split. Apart from the reassurance that the brewers and distillers of Canada were looking for, there is some very interesting language:

Reliance is placed by the appellant on the observations of La Forest J. that “privacy is at the heart of liberty in a modern state”… and that “the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference”. However this “privacy” aspect of s. 7 relates to “inherently private choices” of fundamental personal importance… What stands out from these references, we think, is that the liberty right within s. 7 is thought to touch the core of what it means to be an autonomous human being blessed with dignity and independence in “matters that can properly be characterized as fundamentally or inherently personal”

With respect, there is nothing “inherently personal” or “inherently private” about smoking marihuana for recreation. The appellant says that users almost always smoke in the privacy of their homes, but that is a function of lifestyle preference and is not “inherent” in the activity of smoking itself. Indeed, as the appellant together with Malmo-Levine and Caine set out in their Joint Statement of Legislative Facts, cannabis “is used predominantly as a social activity engaged in with friends and partners during evenings, weekends, and other leisure time” (para. 18). The trial judge was impressed by the view expressed by the defence expert, Dr. J. P. Morgan, that marihuana is largely used for occasional recreation. Reference might also be made on this point to a case under the European Convention on Human Rights decided recently by the English courts under the Human Rights Act 1998 (U.K.). In R. v. Morgan… the English Court of Criminal Appeal observed, at para. 11, that:

A right to private life did not involve or include a right to self intoxication, nor the right to possession or cultivation of cannabis, whether for personal consumption within one’s home or otherwise.

So… no right to do it as a matter of personal autonomy because it is not big enough, not a matter central enough to be a matter of personal integrity. This is a bit weird. If we are autonomous from the state, can’t we choose to be slackers? Are we not allowed to dedicate the core of our lives to the life of choice, even if the choice made is not the profound? If we are not granted each our own choice, we are not then each so much uniquely individual but individual as measured against some idealized standard of generic individuality. I bet if we looked into the brain of the judges the ideal standard might look a lot like the life they chose for themselves. Oddly, in many other areas of constitutional law, the individual is allowed to define him or herself – it is a subjective right. It looks like the subjective right to be slack is not good enough.

Canadian Digital Copyright Rulings

Yesterday’s Canadian Copyright Board ruling on the payment of fees on new
blank media such as iPods and blank CD as got some notice on some popular
US blogs. There
are two separate cases at play, the ruling of yesterday by the Copyright Board
as well as another from 1999 which has been appealed out of the Copyright Board
to superior courts on payment of tariffs through ISPs for sharing music on the
internet. Here are some background documents on both matters:

  • The Copyright
    Board ruling     on the tariff on blank digital media for recording music dated
    12 December 2003. Oddly it does not appear to cover personal computer hard
    drives where most downloaded music resides;

  • The Copyright
    Board ruling     on the tariff on digital sharing of music via the internet
    dated 27 October 1999;

  • The Federal
    Court of Appeal ruling     dated 1 May 2002, the judicial review (narrower, not
    an appeal) of the Copyright Board ruling, above, on ISPs and copyright. Have a
    look around paragraphs 179 to 192 for the point of the ruling; and 

  • A
    Supreme Court of Canada backgrounder     on the appeal from the Federal Court of
    Appeal judicial review. The oral arguments in this appeal were heard on 3
    December 2003. The ruling is pending.

Make sense? With any luck the
Supreme Court will make a ruling that will make practical sense, as I think the
Copyright Board has on the tariff for blank digital media. Unfortunately, it is
an appeal from a judicial review of an administrative tribunal order. Lots of
procedural issues to muddy to substance.

Hate Crime

Discount Blogger, a New Brunswicker in Atlanta, is speaking and entertaining comment on the new criminal code provisions on same-sex hate crimes. I must say, I am flabbergasted by the failure of this vote in the House to be unanimous. In case you are interested, here is the record from Hansard of who voted yea and nay just in case you want a word with your local MP next election. [Hey, there is Elsie Wayne against it and Peter MacKay for it. Troubles in Tory land continue.]

Just to be clear, here is the Bill as passed by the House of Commons. Bill 250 adds sexual orientation to an existing list of subjects of prohibited hate speech – the others being “colour, race, religion or ethnic origin” – under both sections 318 and section 319:

318. (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

(2) In this section, “genocide” means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or

(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

So, the class of speech is limited to advocating killing and physical destruction of a group. These are activities which I usually class in the class “Generally Bad”.

The provisions of Bill 250, now passed, deal with a second set of crimes under section 319, hate speech against “any identifiable group” which leads to “hatred against any identifiable group where such incitement is likely to lead to a breach of the peace” and “communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group”. I also include these acts in “Pretty Much Bad, Too”.

Others do not believe this bad is so general. The wackos Certain of the faithful have weasled required an exception to be worked into section 319 – the “Pretty Much Bad, Too” crimes – in our Criminal Code:

if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text.

So now we can sing “Jesus hates you this I know. For the Bible tells me so…” And hates you, and you, and you and especially you.

And it would also be possible for me to say Jesus hates those who supported the section 319 exceptions as hypocritical, soul-scoured falsifiers…if, that is, I thought it was possible for the good Lord to hate.