Under Canadian copyright law, Hadfield himself would probably be protected from a lawsuit by Bowie's music publisher. Canada's "Non-Commercial User-Generated Provision" states: Non-commercial user-generated content
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if
(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;
(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;
(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one
Unfortunately, YouTube worries about US law and so they would likely still have taken it down if Hadfield didn't get permission from the publisher.
The court did not say that parents are required to become all-seeing and all-powerful beings capable of supervising their children's every waking action. The duty of care required by parents will be different depending on the circumstances of the case and all the court was saying was that in this particular case, these particular parents breached the duty of care presented by these particular circumstances. Which probably wasn't a hard result to reach considering they didn't even take the most basic of steps. All we can really learn from this case is that if your kid gets busted making a defamatory Facebook profile, you should probably inquire as to whether he has taken it down.
(I feel safe making this claim because I notice that, as far as the law of negligence goes, even Randazza doesn't have a problem with how this case went).
I also don't read the CDA quite as liberally as Randazza does. If I was on the other side of that file, I'd argue that an action for negligent supervision of a child does not "treat the defendant as a publisher or speaker of information", and so section 230 does not apply. But I'm quite happy to concede that Randazza knows far more about that topic than I do. (Us Canadian lawyers needn't concern ourselves with such things).
I'll share a TechDirt story on Twitter or Facebook if I think it's interesting subject matter and if TechDirt is offering some unique perspective or insight into the story. If I think it's subject matter that is only going to be interesting to a few specific people, I'll share the link with those people directly rather than pushing it out to the world. (ie. a a story on Facebook privacy will probably be interesting to all my Facebook friends, so I'll post it there. Malibu Media stories are probably only going to be interesting to a few of my IP nerd friends, so those I would share with them directly). Content is king: a clickbaity headline will not make me share a link to a story that doesn't have good content.
If the subject matter is interesting but I don't feel like TD added much to the story, I'll just share the link to the original story rather than the TD story (though I might mention the story came to me "via Techdirt").
I will typically only comment on a story if I feel like I have something unique to add to the conversation. Usually I don't - the topic might be interesting it me, but if all I have to say is "Yeah, fuck Republicans!" then I won't waste my time or anyone else's. However, sometimes stories come up where I feel like I have particular insight or expertise, and then I'll comment heavily. (Since I'm a Canadian IP lawyer, typically this is IP stories, especially if they have a Canadian angle).
They just replaced one of my favorite dives with a Tilted Kilt (*sniff* RIP Bob the Fish). I was in there once and vowed never to go back, due to the terrible food and overpriced beer. Now I have a third reason never to go.
(Also, I agree with previous commenter that the "making their parents proud" comment was unnecessary. Taking cheap shots at the waitresses does nothing to help make the point that this is a bad lawsuit. Let's stick to taking cheap shots at people who deserve it, like the RIAA).
I don't think it's a matter of judges going back and forth on the issue as much as it's a matter of different fact situations leading to different situations.
And I wouldn't count on the Supreme Court wrapping things up in a neat little bow. The foregone conclusion doctrine is not some new concept they just made up to deal with encryption. It's been kicking around since 1976 and SCOTUS has already had multiple chances to consider it. (Encryption might be new, but similar issues arose even before encryption, such as whether a suspect could be forced to divulge the combination to a wall safe).
I'm hoping, at the very least, the law will require some sort of positive action on the part of the accused. I have a few tattoos and I've been told by other people that when they first met me, they were intimidated by me because of that. Apparently, depending on their prejudices, sometimes you can intimidate someone just by wearing shorts.
Man, the media is just absolutely determined to turn this into a real story. This is not a story. One unnamed person in Toronto complained about a book, and the library acted entirely appropriately and chose not to ban the book. That is not news. And yet it's been covered by TIME, CTV, CBC, Toronto Life and others, including Techdirt now.
C'mon Techdirt. Hold yourself to a higher standard than that.
Re: Re: Re: Re: This kind of dodge by the courts...
Err sorry. I used "defendant", but that's not really the correct word. And really, it would impose a huge burden on both parties, it's just that at least the party appealing is choosing to impose that burden on themselves.
It's different because at least in the situation you describe, the defendant knows all the accusations they have to respond to right up front. They can do all the legal research, line up all the witnesses they think they need and do all the discovery at one time.
If new issues were allowed on appeal, that would mean the defendant would basically have to start from scratch: researching new legal issues, doing discovery AGAIN and lining up new (or possibly the same) witnesses. It would impose a huge burden on the defendant. It seems "just" to do it that way because this time around, you agree with the defendant and want to see them succeed. I'm sure the first time the government appealed a trial decision and brought up a bunch of new issues, and the poor defendant faced a huge legal bill having to basically re-litigate the whole thing, the people commenting on this story wouldn't be NEARLY so supportive.
But what's the alternative? Should I be able to sue someone, and then when I lose at trial, appeal it and say "Oh, my first arguments weren't successful so I've decided to try a bunch of different ones"?
In my last year of law school I took a seminar class on copyright law. (Seminar classes are kind of less structured classes where we all just sat around in a group and talked about interesting copyright law issues, and then at the end of the semester everyone had to write a paper).
I chose to write a paper on a similar topic to this post: how the increasing use of electronic resources was in some cases making it harder to get access to works, and how our generation would leave behind a less complete record than the generations before us, since all our cultural artifacts would be wrapped up in DRM.
There was a book I wanted to use to write my paper. My school didn't have it but another school had an electronic copy. I ran into exactly the issue described above: if it had been a paper copy, I could have got it through inter-library loan. But since it was an e-book, that wasn't allowed. Anytime I wanted to reference that book, I had to take a bus over to the other school, get one of the librarians to log me into a computer (since I wasn't a student at that school), and then copy any information I wanted from the book down by hand (the DRM on the book forbade printing or copy and pasting). The irony of the fact that I was trying to write a paper on THAT EXACT PROBLEM was not lost on me. (The upside was that I was able to use my own experience as a case study. )
I remember a study cited in my criminal law class where they tested law enforcement and court personnel from a variety of US agencies on their ability to detect lies based on body language and facial expression. So local law enforcement, state troopers, FBI agents, judges, etc. The only agency that demonstrated an above average ability to detect liars was the Secret Service.
I know that vague references to "a study" without identifying the study aren't trustworthy, so I'm going to try to dig the study up, as much for my own curiosity as anything else.
Forget the courts. This can be solved by Google. Phylis thinks the name "Schlafy" is more closely associated with her? The first item that comes back on a Google search for "Shlafy" is Schlafy Beer. Phylis is second.
It's cliche now to say that big content producers (movie studios, TV networks etc.) need to adapt to the new realities that the Internet has forced up on them. There are, occasionally, situations in which I don't think that general principle is apt and in which I feel a bit of sympathy for the content producers.
But if there is one thing that content producers need to accept as something that is completely true and completely out of their control, it's this: geographical restrictions of any kind are dead. People don't just talk about TV shows and movies around the water cooler in their offce anymore. The true fans, the superfans, the fans who will buy all your DVD box sets and t-shirts and posters and will go to the conventions, the fans that, as a content producer, you desperately want to attract, are online talking to other superfans in other countries. And if you think the superfans in Australia are going to wait six months to watch the episode that all their American friends online watched last night and are talking about, you're badly mistaken. If you don't make it available to them through legal channels, they will find other ways to get it.
And they don't care what the reasons for the delay are. They don't care that back in the 90s, you signed exclusive distribution deals with some Australian TV networks because that made sense at the time and those TV networks haven't got around to making the material available yet. They don't care that you have a marketing plan that depends on staggered releases. They don't care what your excuse is. All they know is that there is something out there that they want to watch, they're willing to pay you to watch it, and you're not giving them that option. So they're going to take the other option.
For those who don't read the actual judgment, part of this is due to the intervention of CIPPIC (www.cippic.ca). They're a Canadian legal clinic connected to the University of Ottawa law school who do some work similar to that done by the EFF in the US. They were granted intervenor status in this litigation and argued strongly and persuasively that the privacy rights of the TekSavvy subscribers had to be respected, and that the judge should be careful not to open the door to US style copyright trolling in Canada.
Beating a motion to dismiss doesn't necessarily mean the case has any merit. Judges are pretty reluctant to grant a motion to dismiss. Motions to dismiss are usually brought before any evidence has been presented to the judge. That means the judge has no way to assess whether the claims in the complaint are actually true. So they just assume they are. The question the judge asks themselves is "If everything the plaintiff said in their claim is true, does that add up to a case?"
So beating a motion to dismiss just means that plaintiff made the right allegations in their complaint. It doesn't mean they have a single shred of evidence to support their allegations. They might still get shredded at trial.