Re: Um, Canada does have something similar to the 1st amendment
I'm assuming he's being charged under s. 264 of the Criminal Code:
264. (1# No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection #2# that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
#2# The conduct mentioned in subsection #1# consists of
#a# repeatedly following from place to place the other person or anyone known to them;
#b# repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
A cursory research effort turned up only two cases where the constitutionality of this provision has really been challenged head on. In what is #to my mind# the most on-point of these cases, the judge said:
It is apparent that for s. 264#2#(b# behaviour to be criminal in nature the psychological integrity, health or wellbeing of the person must have been interfered with in a substantial way. To my mind, violence of this nature is a component of the offence. It would fall squarely within the exception stated by the majority in Irwin Toy and by the Court in Dolphin Delivery. The difficulty is the obiter dicta of Dickson, C.J.C. in Keegstra where after stating that the Court has not decided a case based on this exception to s. 2#b#, His Lordship goes on to interpret what was said in Irwin Toy as restricting the exclusion to a form of expression which is communicated directly through physical harm. In Keegstra the Court was concerned with the threat of violence implicit in hate literature. His Lordship found that the type of communication restricted by s. 319#2# could not be considered as violence nor analogous to violence. We are not dealing with a threat in considering s. 264. Rather, we are concerned with direct psychological violence and resulting harm. I have difficulty with the notion that direct psychological harm, which, as Cory, J. pointed out, is often "more pervasive and permanent in its effect than any physical harm" and can be every bit as damaging to a person's well-being, would not fall within the exception as stated in Irwin Toy. To my mind, the cause and effect contemplated by s. 264 goes well beyond a "threat" of violence.
I agree with what Craig, Prov. Ct. J., in R. v. Hau,  B.C.J. No. 677, Paragraph 11, said, though when he uses the term violence I believe he has physical violence in mind.
"I conclude that Section 264 clearly expands our criminal law to deal with anyone who harries another to the extent that it brings about a reasonable apprehension of violence. The stalking of another person intrinsically involves potential violence and its social consequences are appalling. When a person knowingly or recklessly engages in conduct specified in Section 264#2#, resulting in a reasonable apprehension of violence, there can be no exculpation by characterizing such conduct as a legitimate exercise of the freedoms guaranteed in Section 2 of the Charter. Those freedoms are not absolute and were not intended to justify latently violent conduct. Moreover, in our democratic society, the freedoms in Section 2 must never serve to diminish a person's right to be free from and protected against violence, or the threat of violence brought about by harassing conduct."
Thus, I find that the type of expression which may flow from behaviour as contemplated by s. 264 is not protected by s. 2#b# of the Charter.
#From the trial decision in R. v. Sillipp, I'd link it but I can only find the appeal decision on non-paywalled sites#.
So basically, according to that judge, this law is constitutional because in order to get caught by it, you have to repeatedly communicate with someone while knowing that your communications are interfering with their psychological integrity, health or wellbeing. That's a form of violence and violence isn't protected by the Charter right to freedom of expression, therefore no constitutional issues to here.
My guess is the judge in this new case will adopt that standard, say the defendant doesn't mean it and find him not guilty without getting into any further discussion as the constitutionality of this provision.
Because I just love to get yelled at and told I'm an idiot, I'll put forth the opposing argument: this doesn't sound like THAT ridiculous an argument to me.
Where privilege exists, it can usually only be waived by the privilege holder. I know there have been some Canadian cases that have held that an accidental disclosure of documents does not waive privilege over those documents. So an argument that getting hacked does not waive privilege doesn't sound THAT ridiculous.
Of course, I write this without doing any research into those specific cases or any relevant US cases on the law of privilege.
Agreed. And people have been using timers to take self photos for decades. I've been packing a mini-tripod (more recently a GorillaPod) whenever I go on vacation for at least the last decade for this exact purpose. No one ever threatened to ban me from anywhere.
As someone who used to teach copyright law to students, I can guarantee you that your average selfie-stick user has absolutely NOT put any consideration whatsoever into who owns the copyright to their vacation photos.
I dug around for some Canadian caselaw on this last year and all I came up with was a single Quebec Court of Appeal case: R. c. Boudreau-Fontaine.
There, at least, the judge was firmly of the opinion that compelling an individual to divulge their password was unacceptable.
 I note that it orders the respondent to disclose his password#s# [translation] "in order to establish that the computer was connected to the Internet by Mr. Boudreau-Fontaine, thus breaching the conditions of his probation." In other words, the justice of the peace was commanding the appellant to give essential information with the specific intent of having him incriminate himself. I cannot see how the criminal law can allow such an order. It should be noted that the respondent complied with the order but that he certainly would not have done so without it, proof being that he refused to speak with the police officers about the events of September 19 when he was arrested. As the respondent wrote in his written argument, this order raises the issues of the right to silence, the right to be presumed innocent, the right not to be conscripted against oneself, and the protection against self-incrimination. Commanded to participate in the police investigation and to give crucial information, contrary to his constitutional rights, the respondent made a statement #identification of his password# that is inadmissible and that renders the subsequent seizure of the data unreasonable. In short, even had the seizure been preceded by judicial authorization, the law will not allow an order to be joined compelling the respondent to self-incriminate.
 In R. v. Hebert, 1990 CanLII 118 #SCC#,  2 S.C.R. 151 at para. 47, McLachlin J. writes:
... the right to silence may be postulated to reside in the notion that a person whose liberty is placed in jeopardy by the criminal process cannot be required to give evidence against himself or herself, but rather has the right to choose whether to speak or to remain silent.
 Without necessarily being detained, the respondent was compelled to participate in his self-incrimination and was given no choice in the matter: he had to help the police officers convict him. This approach is unacceptable.
But of course, things are different at the border.
[quote] "This device is capable of manufacturing firearms, and potentially by private individuals,” FedEx spokesperson Scott Fiedler wrote in a statement. “We are uncertain at this time whether this device is a regulated commodity by local, state or federal governments. As such, to ensure we comply with the applicable law and regulations, FedEx declined to ship this device until we know more about how it will be regulated."[/quote]
My take on this statement is: someone up the chain in FedEx saw this product, which is advertised as a tool to help people make guns, and got spooked about the potential legal and PR issues. Now they're not going to ship it until the lawyers and PR folks tell them it's fine. Since this product probably represents about .0000001% of FedEx's total revenue, sorting this out probably isn't anyone's top priority. In fact, given that lawyers and PR people don't work for free, its probably more cost-effective for them to just not bother sorting this out at all and just choose not to ship the item.
You're assuming Mega had to have committed a direct infringement. 506 doesn't say that. Indirect infringement is still infringement. If Mega was aware of infringing content on the service and was intentionally leaving it up there and continuing to host the material in the hopes of enticing users to give them money, then there's a reasonable argument to be made that they were committing an indirect infringement for commercial gain
Not that I DON'T think this is the DoJ going overboard on this poor guy, and I'm certain that his plea agreement was nothing more than an attempt to just get all of this over with, but the criminal charges don't seem too far fetched to me. The criteria listed in § 506 are:
1) the person has committed copyright infringement; 2) for the purposes of commercial gain; 3) through electronic means and the works have a value of more than $1000; and 4) the work was "prepared for commercial distribution"
Mega was a business and he was getting paid, so 2) isn't going to be too tough. 3) and 4) are also not going to too difficult: there were probably plenty of Blockbuster Hollywood movies in the mix there, and no matter how much you want to argue about how to "value" the cost of movie piracy, $1000 is not a high bar to reach.
So we're pretty much left with the first question, which is: did he commit copyright infringement in the first place? After the isoHunt and Grokster cases, it seems pretty clear that courts are happy to nail you for contributory infringement if you're running a supposedly content agnostic service but the evidence shows that you were aware of specific copyright infringing content being traded. Maybe if this had gone to trial they wouldn't have been able to prove that part. But since he admitted as part of his plea that he had downloaded copyright infringing content himself from MegaUpload, that part is pretty much taken care of.
I'm not saying they had an airtight case against the guy, but the criminal copyright charges aren't THAT far out there.
Agreed. I pay $10/month for Google Play All Access, and before that I used Sony's Music Unlimited service. I listen to a ton of music, at home, in the car, at work when I can get away with it. Having access to that huge library of music, including brand new releases, is of tremendous value to me. I love having a friend text me to say "Oh, did you hear so-and-so released a new album" and 30 seconds and 10 clicks later, be listening to it, is of huge value to me. I've often remarked I'd pay double (or even more) what I currently pay for a good streaming service. I get far more value out of the music streaming services than I do out of my Netflix subscription.
That might not be true for everyone, or even most, but I find $20/month to be perfectly reasonable.
This article reminds me again of what a difference statutory damages can make. In Canada, statutory damages actually serve to discourage copyright litigation: in many (but of course, not all) cases, they're set so low that the money a litigant might be able to get out of a lawsuit is less than what their lawyer's bill would be. This really discourages suing unless you can prove substantial actual damages.
(And yes, this is true even though we have a costs system, where the losing side has to pay part of the winning sides legal fees. Even when you win, you never get 100% of those fees covered).
I'd also never heard of his nickname or "reputation" before this story, and I've never seen anyone wearing one of those t-shirts. And I live in Calgary (although I'm admittedly not much of a Flames fan, so I don't pay much attention to what their players get up to).
But the judge doesn't know. The judge is not an expert on how these radar guns work. And there are limits on how much independent investigation judges are allowed to do. They are generally expected to work with what has been put on the record: the evidence introduced by the parties.
If the defendant's lawyer was going to argue that the use of these radar guns was unconstitutional, (s)he should have made sure the judge was educated on just how these guns work.