The judgment only SHOULD be reversed if it didn't apply Australian law correctly. This judgment is 184 pages long. They extensively review defamation judgments from all over the common law world, including 20 pages worth of review of judgments JUST in the Internet context. I think saying this is just some crazy backwoods judge is a little dismissive.
I know everyone here loves to hate on judges and lawyers, but this might be an entirely correct application of Australian defamation law.
Meanwhile, here in Canada, we have an election in two weeks. The Conservative Party (the party that is currently in power and which negotiated the TPP on Canada's behalf) is by no means guaranteed to be returning to power. The other two major parties haven't seen the final text, so who knows what position they'll take when they do.
There's a decent chance that our government will change in two weeks and the new government won't support the agreement and will refuse to sign on.
Well, this lawyer probably bills out at least $500/hour. $5,000 is like a day's worth of work.
I'm not defending the Pokémon Company's actions here. If I was them, I'd be eating this cost just to avoid the bad publicity they're going to get now (or, you know, just not filing the lawsuit in the first place).
I'm just saying, it doesn't have to be very time consuming to add up to $5,000.
They are concerned about the contents of this notebook for all the wrong reasons. Bloon Tower Defense 5 (and 4 before it) absolutely devastated my productivity for over a month. Frankly I'm amazed I was never fired. This kid's entire academic career is in jeopardy.
Sure, getting that Super Monkey feels food. But at what cost?
It's worth nothing that this isn't a result on the merits. It's a result on an application to have claims dismissed before trial, something judges are reluctant to do. An I actually agree with the majority on this one (I know, what a dick).
The dissent states that courts have consistently rejected the contention that defendants "develop" content by maintaining neutral policies prohibiting or limiting certain content.
But that's not what the plaintiff is alleging. And unlike the craigslist case referenced, they're not alleging that Backpage ignores people who violate their policy. They're alleging that Backpage's policies aren't neutral but were written specifically with the intent of encouraging sex trafficking. And the court is obligated to accept this as true in an application like this, where a defendant is trying to get claims thrown out before a trial and before any evidence has been submitted.
I don't think Backpage's policies ARE written with that intent, and I have every confidence Backpage will win on the merits, but I don't think the court was wrong to find as they did in this application.
With that said, I also don't understand what point Wiggins was trying to make with his bit about the use of the word "immunity".
Techdirt has been following for a while the Canadian government's unabashed attempts to muzzle scientists and librarians who work for the state, as it tries to deny them the right to express their views if those happen to disagree with the His Excellency, Prime Minister for Life, Superior Person, Great Leader of our Party and Nation, Guiding Star of the 21st Centry, Lord of All the Beasts of the Earth and Fishes of the Seas Stephen Harper's political agenda.
The end result, of course, is the chilling of speech. Currently, there's a measure of due process to the proceedings. If this bill passes, that's gone. And with no clear standard expressed in the bill itself, all sorts of previously protected speech will be potentially subject to criminal penalties.
A nitpick, but an important one. In Canada, only the Federal government can pass criminal law. Quebec might be about to pass a terrible, horrible, no good, very bad law, but the one thing it can't do is result in criminal penalties.
Which doesn't mean the remedies the tribunal can order will be painless. In addition to whatever powers the Human Rights Tribunal already has, this legislation grants it the power to order fines of up to $10,000. And of course, and just getting dragged before such a tribunal will be a huge pain in the ass and will carry a stigma.
But technically, they won't be characterized as criminal penalties. That sounds like a petty distinction, but it can be a pretty big distinction when you're trying to cross an international border or applying for certain jobs.
I came to say the same thing. When I read that paragraph, it wasn't at all clear to me which of the three items listed was the "actual" weapon, even though the tone of the sentence suggests it should be obvious.
Even if, as John states, Tim intended to say "weapons that pose a serious threat", I don't see how that's at all relevant. Their policy doesn't mention weapons at all. Their policy just states that they're trying to ensure the "comfort and safety" of their guests and employees. So the question of whether something is or is not a weapon that poses a serious threat is irrelevant. Pepper spray and hatchets and airsoft guns can all cause some serious discomfort.
(As an aside, Wikipedia states that pepper spray has led to deaths in some cases, but without a citation. So it's possible that at least two of those items pose a serious threat).
What if I republish another person's statement? (i.e. someone comments on your posts)
Generally, anyone who repeats someone else's statements is just as responsible for their defamatory content as the original speaker—if they knew, or had reason to know, of the defamation. Recognizing the difficulty this would pose in the online world, Congress enacted Section 230 of the Communications Decency Act, which provides a strong protection against liability for Internet "intermediaries" who provide or republish speech by others. See the Section 230 FAQ for more.
The vast weight of authority has held that Section 230 precludes liability for an intermediary's distribution of defamation. While one California court had held that the federal law does not apply to an online distributor's liability in a defamation case, the case, Barrett v. Rosenthal, was overturned by the California Supreme Court (EFF filed an amicus brief in this case)
So, it sounds as if, at least on the Internet, US defamation law would reach a significantly different result (although in traditional print publishing, probably not). But wait, there's more! If you go to the EFF's Section 230 FAQ (linked from that first article), they state:
Your readers' comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it. However, if you selected the third-party information yourself, no court has ruled whether this information would be considered "provided" to you. One court has limited Section 230 immunity to situations in which the originator "furnished it to the provider or user under circumstances in which a reasonable person...would conclude that the information was provided for publication on the Internet...."
Now, I know that skimming a few EFF FAQs is not a substitute for actual legal research. But it sounds to me like it's not so certain at all that a US court would have found differently.
Why is "provincial" in quotations? It's a real thing and distinguishing between municipal regulations and provincial laws is legitimate (of course, that doesn't mean this particular lawsuit is legitimate). This Toronto Star article has more information on exactly what law the lawsuit relies on.
And that means that, at least in this specific case, the system has broken.
Not that I don't think trademarks get misused, but I don't think this is evidence of a broken system, at least not yet. The "single individual" just threatened to trademark the terms. Pride TO has applied for a trademark over those terms. But so far, no one has actually been granted a trademark. It's still very possible that the trademark office will reject the application, whether it comes from Pride TO or the mysterious individual... in which case the system will be working exactly like you'd want it to.
I'm sure that United Airlines didn't think through much of this and the details when it agreed to these ridiculous terms. It just thought it was adding an option that sounded nice. Letting people have access to more entertainment options, including on their own devices sure sounds like a nice option for some passengers. But if it comes with forcing people to put their computers and information at risk, it gets problematic fast.
To give them the benefit of the doubt, I'm sure someone at Universal realized this was problematic. Just maybe not someone in a decision-making role. Alternatively, someone in a decision-making role DID realize the problem here and thought "OK, so a few copyright wonks and security people on the Internet will freak out but 99% of our customers won't give a shit. They'll install whatever we ask and leave with fond memories of being able to watch Agents of SHIELD on their laptop on the flight".
Now that I re-read this, both of those options actually make United look worse than they did under Mike's theory. So much for giving them the benefit of the doubt.
To clarify: the injunction against Google in the Equistek case was first issued by Justice Fenlon in the Supreme Court of BC. It was then upheld by the Court of Appeal. It's Justice Fenlon again who has issued the order in the Niemala case (without apparently even referencing the Equistek case).