Do you think it is a good idea for police to be allowed to listen to phone calls without getting a warrant first?
That is exactly what the Harper Conservatives are proposing to imbed into our Criminal Code.
We should all oppose this – especially as more of use use VOIP and as our cars and smart meters are constantly recording bucketloads of information about us.
It is the nature of laws – at least, in free societies – to be passed in response to new developments in society. That is why, in the common law tradition, legal precedents affect not only how old laws are applied but also how new laws evolve.
This creates a feedback mechanism: the laws affect how the rules of society evolve, the rules of society affect how the laws evolve.
Currently, the courts are trying to interpret the existing laws to accommodate the changes due to our ‘communications revolution’. Since more and more of our public and private communication as well as our public and private information is online, the impact these ruling will have over the coming decades is truly profound.
This makes Connie and Mark Fournier’s ongoing legal battles very important to all of us: if you are reading this on a computer, then the rulings in their legal battles will affect the rules under which you live your life. And not just in Canada – the world is fast becoming one electronic family and slowly but surely, internet-affecting legal precedents set in one Western country reverberate in the whole world.
That is why I have started to document the Fourniers’ legal journey – even though I have no legal training and my understanding of what is being said in court is imperfect. But, if I document it to the best of my ability, perhaps others who are more knowledgable will be able to comment on what I have witnessed and explain it better to all of us!
Last week, the Fourniers were in Federal court in Ottawa – charged with copyright infringement by Richard Warman.
To my mind, some of the things the Fourniers are charged with are difficult to understand – but one of them is very clear and will very likely set the legal precedent for Canada on a very hot topic: ‘inline linking’. The legal precedent on copyright issues regarding the insertion of an inline web link has been ruled by the US Court of Appeals for the Ninth Circuit, clarifying that inserting them does not violate US copyright laws. For search engines, anyway…
There has not been a comparable ruling in Canada – yet.
Richard Warman has brought a lawsuit against the Fourniers for violating his copyright in 3 separate ways.
One – and, perhaps most important regarding the abovementioned legal precedent – is for having permitted the insertion of an ‘inline-link’ on the Free Dominion forum they operate which linked to a picture of Richard Warman, on his own website.
In other words, the picture was always posted only on Richard Warman’s own personal website and he had full control over it. An inline-link was posted on Free Dominion which would show the reader Richard Warman’s picture from Richard Warman’s site. The picture was, at all times, on Mr. Warman’s server and under his complete control – he could have, at any time, blocked inline-linking to the picture…yet he chose to permit inline-links to the picture to function.
Inserting the inline-link on Free Dominion, according to Mr. Warman’s claim, constitutes displaying his image without permission and thus infringes on his copyright.
Therefore, the ruling on this will have important implications for internet use in Canada, perhaps further. Should the ruling go against the Fourniers, then any time anyone inserts a hot-link when they comment on something on a blog or site you control, you could be liable for copyright infringement.
The other two counts of copyright infringment Mr. Warman is suing the Fourniers for are regarding words, not images, and words which were posted on the Free Dominion site and not words that were simply linked to.
Jonathan Kay had written an article for National Post in which documented how, at various court hearings, it was revealed that Mr. Warman appears to have made some highly inflammatory racist, misogynistic and anti-immigrant comments (specifically targeting Senator Anne Cools) on a white supremacist website/forum. (I myself have heard the same assertions during the ‘Vigna v Levant’ defamation hearing, where Mr. Levant had clarified that to the best of his knowledge, it was not Mr. Vigna but rather Mr. Warman who was the card-carrying member of a neo-nazi organization and the author of this most vile hate speech directed against our first black female Senator.)
This newspaper article was re-printed (with credit – but it was not stated during the hearing if fully or partially) on the Free Dominion forum.
Mr. Warman sued the National Post for publishing that article and the National Post and he reached an out-of-court settlement with them. As part of this settlement, Mr. Warman got the copyright of the article.
Once he owned the rights to the article, Mr. Warman’s lawyers contacted the Fourniers and demanded that they remove the article from their website. This they complied with immediately, as was confirmed by Mr. Warman’s lawyers.
Despite this, at some subsequent time, the Fourniers were contacted by Mr. Warman’s lawyers and were requested to pay some sum of money to Mr. Warman to avoid a lawsuit for having posted the article in the first place. The Fourniers believed that they had complied with the request to remove the offensive material in a timely manner and therefore did not think they were obligated to pay any money as well. Subsequently, Richard Warman filed a copyright violation lawsuit against them on these grounds.
The last, third count of copyright violation has me puzzled more than the previous two.
The Fourniers had posted on Free Dominion sections of court documents – public documents, to the best of my knowledge – which had contained the phrases on the basis of which Mr. Warman was taking legal action against someone (the phrases he had found offensive) which had also been published in the article from point two. Even though the Fourniers had clearly published these phrases as part of a public document, as they were also part of the article which Mr. Warman’s lawyers asked them to take down, Mr. Warman had charged them with copyright infringement for having posted them.
This, in a nutshell, is the background to this particular lawsuit Mr. Warman is pursuing against the Fourniers.
The Fourniers had filed their defense statement with the court – representing themselves. Mr. Warman’s lawyers had informed the Fourniers that some of the things which they listed in their documents were inadmissible in court and asked the Fourniers to remove them. The Fourniers refused to do so, because they believe this information to be relevant to their defense and would like the judge in the case to be the one to decide what is admissible and what is not.
Mr. Warman’s lawyers then filed a motion to have parts of the Fourniers defence statements struck from the record (not all the bits they had originally wanted removed, but still a significant amount)- something the Fourniers believe will affect their defense not only in this copyright violation lawsuit but also in three additional lawsuits (for defamation, I believe) that Mr. Warman is pursuing against them.
Last week, there was a hearing in federal court for this motion – a most interesting event in its own right (which I had gone to see for myself and will write up very, very soon, I promise!).
This is disgusting!
Yes, there are some people who abuse anonymity on the internet.
Then there are others who eschew it – they believe that attaching their real-life name to an online communication will add weight and respect to it. This is, to some degree, true: if their real-life name has some earned public credibility, attaching it to their online persona will add credibility to the online persona.
BUT!!!
Name is just a label.
If a person has built up his or her credibility using an online persona – truly built up credibility – by time and time again providing solid, verifiable, quality information, then their real-life name is really quite irrelevant.
To the contrary: it is a very useful shield!
Journalists who publish in traditional media have an organization that stands behind them and offers them at least a modicum of protection should they become threatened by those who wish to silence them.
Online communicators do not have this luxury!!!
But ‘online’ is not the beginning of ‘anonymous protest speech’!
No, nowhere near… Even the most basic bit of research into the history of anonymous protest speech demonstrates brings us to Colonial North America. Printing presses were used to print anonymous pamphlets which were distributed and which informed the public of facts that the government did not want known and which fostered the atmosphere necessary for the fight for independence.
In fact, most of the works by America’s Founding Fathers were originally published as anonymous pamphlets!
So, let’s not go down the role of silly posturing: anonymity is essential for free speech!
(Sorry if I am not particularly coherent in this post – I am so angry as I write this, I can hardly keep myself calm enough to type!)
To hear that Thunderf00t’s real-life name has been ‘outed’ by an Islamist group (which claims to be made up of ‘moderate Muslims’), that his job has been threatened, that his address has been published – and now, that his family members are being threatened with physical violence…THAT IS AN OUTRAGE!!!!
I guess all we can do is spread the word…
…and hope for the best. Because I am at a loss for what else to do to help him.
P.S.: It took me a second viewing to pick up pn it, but it does seem that the online Islamists just may have attracted the attention of ‘Anonymous’. THAT would be interesting, to say the least!
Connie and Mark Fourniers are coming to Ottawa for a Motion in the Copyright lawsuit Mr. Richard Warman is bringing against them for using his own words in self-defense against other lawsuits he has brought against them.
I may have this completely backwards, but, to the best of my understanding, Mr. Warman accused the Fourniers of defaming him. The Fourniers used Warman’s words to prove the truth of their statements – since truth is still defense against the charge of defamation. Mr. Warman says that by using his words, they are infringing on his copyright on the intellectual property of the ideas he expressed. And he is suing them for it.
Yes, it sounds ludicrous – but that does not necessarily imply I have misunderstood the main point…
The Fourniers will be coming to Courtroom #2 on the seventh floor of the Sir Thomas D’Arcy McGee Building, 90 Sparks Street at 9:30 a.m. If you can, come show them your support.
Michael Geist explains it much better than I ever could.
I’ll just add that this is very distressing – and a big strike against individual property rights.
In the digital age, it is much easier for information to dissiminate.
That is a double-edged sword.
After all, information can not only help you – it can track you. And we are being tracked now, more than ever.
I’m not just talking about videocameras everywhere – there is so much more!
Many manufacturers are inserting IR id tags into their products – individual numbers are assigned to each piece of merchendise which is than tracked when you walk back into their stores: if you walk through the store in an item with such an IR tag, it’ll tell the store who you are, which store you purchased that garment in, how you paid for it and what other purchases you have made from that company. All this to better help sales-staff target you customize your shopping experience.
All the data stored on your personal digital devices can be accessed remotely – by just walking through a doorway with a sensor in it: from phones and cameras to ‘smart’ passports. Remember those ads for coffee-tables that you just place your camera on and they will automatically download the photos – yeah, we have not been hearing about it much lately, even though the technology has been around for years…
Of course, many of us are complicit in corporate datamining: every time we use the ‘customer rewards points’ cards (like AirMiles), we are permitting large corporations to cross-analyze our shopping habits – by storing and analyzing info on everything we buy. I never understood why people sold their private information so cheaply! But, so many of us do…without a second thought.
And that is the problem: we give permission for vast amounst of our private information to be collected, analyzed and used by ‘unseen entities’ (usually corporate, but often government ones) without ever giving it a thought. We chide teenagers for not being careful about the information they put on ‘Facebook’ or about sending provocative photos of themselves by phone – but this is negligable compared to the type of information we give away daily….just so long as we think there is some minor benefit to us.
Things have escalated to the next level: many of us are now not just consenting for our most private information to be accessed by ‘third parties’, we are increasingly willing to hand over the very control of our choices/actions to ‘third parties’ – both corporate and governmental.
Let me give you a little example of the latter: in Ontario, there is a new program where the government ‘gives’ you a brand new electronic heat/air-conditioning controller and installs it in your house.
For FREE!!!!!
And it has the added ‘benefit’ that with this controller, you will be helping stabilize the load in our electricity supply, because when there is a ‘crunch’, the government can automatically access this meter and change your temperature setting by a few degrees if the electricity grid load is too high….
PEOPLE ACTUALLY SIGN UP FOR THIS!!!!!!
VOLUNTARILY!!!!
It makes me want to scream – or cry. Just thinking about it, I feel a migrane coming on…
Which brings me to OnStar…
A few years ago, I purchased a new vehicle which came with a ‘free one-year OnStar service’. So, I read the terms and conditions of the contract – you know, the small print. And I was shocked at what I read there. Not shocked that they would want these powers – but that anyone would agree to this. I do not have the contract in front of me, so I am going from memory (and paraphrasing), but the things that stuck out most in my mind were:
Now, I don’t know whom these OnStar people are employing – but I doubt that the employees are making much over minimum wage. Yet, these are the very people whom I would hand the permission to use their discretion over my private information? Not likely!
So, I said I would purchase the vehicle – but only on the condition that the OnStar thing NEVER gets connected. This seemed to shock the sales-people – they obviously thought me a nut, which was perfectly fine with me, but after much hmmmm-ing and haaaaw-ing, they produced the required paperwork.
Now I was purchasing the vehicle – but ‘waiving’ the OnStar contract and the sales bill also included a hand-written clause that said OnStar would never receive ANY of our information and the system would never be activated. I was ‘safe’, right?
Well, not exactly…
Even though my sales contract specifically stated that the OnStar system must never become activated and none of our information (including our name) would be shared with OnStar, something had obviously gone wrong.
A few weeks into the ownership of the vehicle, while driving down the street, the OnStar people started TALKING TO US through the console!
No, I did not push the ‘OnStar’ button. And, even if I had, according to the condition in our sales contract, the cell-phone number necessary to activate the system was never to have been obtained for this vehicle…
So, what did the OnStar people have to say to us?
The voices (sometimes male, but usually female) informed us that their records about us are incomplete and that we need to contact their office in order to enjoy fully our free year of service….
I was not happy.
I called the dealership to complain – and was clearly not believed that this was happening. According to their paperwork, it was physically impossible and the person I spoke to was obviously wondering if the voices I was hearing were really from the OnStar unit and not just inside my head.
It got worse.
At about the same time, we started receiving letters – through the mail – from OnStar.
With our names and full address – and listing the VIN number of the vehicle we bought, telling us that there was now only one tiny step we needed to take – confirm their information was correct – to begin enjoying our ‘full year of free service’!
Predictably, I went medieval on the car dealership that sold me the vehicle. (Now, whenever I call or come in, only managers or higher are permitted to interact with me and I get the red-carpet treatment…but that is another story. The dealer was blameless in this – but the people they represent weren’t.)
To make my story short (OK, slightly less laborious), I threatened to not just return the car, but also to sue them for breach of contract. Which ‘they ‘did breach – some ‘they’ along the line.
The dealer was the one whose signature was on my contract….so I would need to sue the dealer and the dealer would then get to sue whomever else next ‘up the chain’ – as I explained to them slowly and clearly when they swore up and down that not one person at the dealership gave OnStar my name, address and the VIN of the vehicle I had purchased. Which someone somewhere along the line clearly did – and I had the correspondence from OnStar to prove it.
Within a day or two, the dealership had brought in a special tech who had disconnected the OnStar unit completely – and insisted I watch. They had to take the whole front dash off to get to it…
However, the tech told me an interesting piece of information: in some current models – and eventually ALL future models – this OnStar technology is being hooked up through the starter mechanism of the vehicle itself. The upshot of this is that if the OnStar antenna/monitor is physically disconnected, these vehicle will not start.
And if it is not physically disconected, your data is theirs – whether you have a plan or not.
So could not but chuckle when I came across this story: OnStar had now changed its terms of use to make it perfectly legal for themsleves to sell – SELL – all the information gathered about you via their box: from your movements, to your seatbelt use, speeding habits, when and where you fill up, and so on. (This last bit will come in handy when governments decide to impose a ‘per-vehicle’ mile/kilometer travel allowance, after which the owners will be charged an extra ‘eco-consumption-tax’ – come on, you can see it coming!)
So, now, OnStar says openly that they will collect your data, whether or not you want (as disconnecting their data-collection unit physically will make your car not start) and then sell it to other corporations and the government.
Isn’t ‘collusion of industry with government, limiting the freedoms of he individual’ the very dictionary definition of ‘fascism’?
UPDATE: OnStar announces that it will no longer tell people that they are continuing to collect their data – so there is a chance that cops may not openly use this info against citizens…
Not surprising, but with a twist…
Since I have been experiencing some problems with my internet connection (few minutes on, few hours off), I cannot dig into this as well as I would like to. However, Kaffir Kanuck has an in-depth write up – perhaps you could read it there.
Let me just state, clearly and unequivocally: freedom of speech is a core human right and we must tolerate no infringement upon it. That whole “I disagree with what you say, but I will fight to the death for your right to say it” adage applies here. For the State to use criminal law to silence a citizen is simply beyond the pale and we must all stand up and speak up against it!
If you still had any doubt, SlashDot has a nice, short blurb with links in it confirming they are not the best thing for your health.
Not sure what ‘Backscatter Vans’ are?
They are vans equipped with backscatter x-ray machines which the U.S. Department of Homeland Security has been driving up and down the streets, especially in urban centres, scanning all the people in the viscinity – without their consent or even knowledge. (Yes – just imagine the nightmare scenario: a woman, in the early weeks of pregnancy, stops innocently nearby one of these unmarked surveilance vehicles and has her baby’s DNA scrambled…) This has been happening for quite some time – quetly, but definitely.
Now, through FOIA, there is confirmation that these machines produce x-rays at levels that are unsafe for humans.
But, don’t worry – since they are classified as covert operations machines, they do not need to adhere to them old-fashioned safety standards!
There have been some unpleasant rumblings from the legal circles on a few important issues.
First, some seriously misinformed courts have ruled that ‘genes’ are not a product of nature and are therefore ‘patentable’. The upshot of this spells huge obstacles to cancer and other important medical research (patents on genes make it too expensive to do life-saving medical research) – and in my never-humble-opinion, will eventually lead to a new form of slavery where you will not actually ‘own’ your own genes…
And on another, no less important front, if Oracle gets its way, ‘open source’ could become impossible in practice.
Not good.
Xanthippa's Chamberpot 