The numbers are pretty interesting; and the site is probably worth a bookmark for anyone involved in IP law. You can see, for example, that BPI made 5X more copyright enforcement requests than the RIAA last month. You can also identify which domains are being taken offline, or which file sharing services are receiving the most attention.

An interesting window inside Google…

The Task Force has previously been commented on Slaw by Adam Dodek and John O'Sullivan. The five options under review include:

1. Maintaining the status quo

2. Status quo with added quality assurance measures

3. Replace pre-license transition requirement with post-license requirement

4. Allowing students to do a practical legal training course (PLTC) during or after law school

5. Abolishing articling in favour of a PLTC only

Variations of this model include the creation of articling positions for duty counsel in Small Claims, Legal Corps dedicated to improving access to justice, clerkships in Family Court, and increasing funds to legal clinics in order to hire students.

Also worth reviewing are the submissions by individuals, law firms, law schools, and legal organizations on the LSUC website. The transparency of this process is to be commended, as the conclusion will regardless by difficult and controversial.

The final report is expected for Fall Convocation.

The author, Claude Robinson, considering himself ruined, decided to continue his battle to the highest court of the land arguing that the judgment was detrimental to all creators and should not become law.

On July 20, 2011, the Quebec Court of Appeal confirmed that the production company Cinar, Ronald A. Weinberg, the late Micheline Charest, Christophe Izard, France Animation, Ravensburger FILM + TV Gmbh and RTV Family Entertainment AG did plagiarize Claude Robinson's ideas and work, and deprived him of his copyright on the television series Robinson Sucroë; however, the Quebec Court of Appeal considerably reduced the damages.

Following the court decision, Robinson stated,

They say that for 16 years I was right to continue. I told the truth. It was confirmed that this was plagiarism, and they are punishing me. I do not understand.

Hi ho! Hi ho! to the Supreme Court we go! (whistles)

I'd be very happy to chat to anyone about what is going on over here, if I can be at all helpful

Best
Nick West
Director of Legal Markets, LexisNexis UK

-Kim

I had the chance to attend the last INTA meeting in DC. This was an opportunity to discuss the various on-line artifacts of a trademark on the Internet (domain name, social media, search engine marketing) with IP professional. I was surprised by the chasm between the practices regarding on-line brand protection. Either in terms of the used business models or technologies.

Please let us have your recommendations for what we and our readers might like.

The Atlantic – Views From the Night Sky: London and the U.K. – Jason Hawkes – The photographer snaps London from the open door of a helicopter with a gyro-stabalized camera. Obviously, he has no fear of heights. As a bonus, there's a video at the end of the 30 pics that's moody enough to make London look as though it's Blade Runner. Kill the sound, though.

Torontoist – Historicist: Throwing Intellectual Bombs – Kevin Plummer – A brief accounting of the formidable Emma Goldman's time in Toronto, which provided her with a more or less safe haven when the US refused her entry. The great anarchist died in Toronto May 14, 1940.

The Chronicle of Higher Education – Is Death Bad for You? – Shelly Kagan – The Yale philosophy prof does what philosophy profs do: she takes an obvious thought and unpacks it until you find yourself scratching your head and saying, "Wait a minute…!"

The New Yorker – Justice Ruth Bader Ginsburg's Favorite Classical-Music Records – Alex Ross – She's an opera lover, so if you're going to argue at SCOTUS you may want to sing your plea. These are not just favourite pieces but in fact favourite performances. Here's a link to 90 seconds on iTunes from Dvořák's “Rusalka” with Renée Fleming and Canada's Ben Heppner.

Intelligent Life – More Than a Big Meringue – Simon Hopkinson – While we're on about powerful women (Ruth, Emma, London . . .), we might as well take a look at Anna — Pavlova, that is, the celebrated ballerina. The writer extols the desert created in her name and gives you a method to make it right.

Vimeo – Style in the Wire – Erlend Lavik – From meringues to bangs now. In this half hour essay, Lavik analyses the style of TV's most lauded show, helping explain in part at least why you like it as much as you do.

Guernica – Mercator Turns 500 – Michelle Legro – Now to different wires, those that slice up the globe, and to a short history of Mercator, whose mathematics made navigation easier for sailors — and continues to irritate irredentists and those who don't like to see so much of Greenland.

The Junket – Language Turned Convict – John Gallagher – Along about the same time the Merc was messing with time and space, one Thomas Harman was blowing the gaff on cryptolects. This is a look at the secret languages — cants, slangs and argots — used by criminals and other unacceptable groups to keep us out. Better than PGP, perhaps.

Vimeo – The Tell Tale Heart – UPA (1954) – This is an old but great animated retelling of the Edgar Allan Poe story narrated by James Mason, one moral of which may be that there is no such thing as privacy when it comes to wrongs, at least those we feel guilty about.

The Economist – Making no cents – anon – Speaking of murder, the world takes notice that we're killing the penny. A good way to refresh your understanding of seigniorage, and to prepare for what will doubtless be an increase in prices.

What is a Super Fan?

• Not simply a client that is simply satisfied with your work but truly loyal to you
• Active referral vs. Passive referral for new work
• Business development advocate
• A client that values you both as a person and professional
• Cheerleader

These are clients that will promote you at any opportunity possible. They understand the value that you bring as a lawyer and as an individual. These people like you and people do business with people that they like.

Super fans need to be developed and nurtured. These relationships do not happen overnight nor will they happen with every client. Part of building a practice is figuring out who could be a super fan and work to develop the relationship. The following steps can be used for any client, but should be more focused on relationship building:

• Develop the relationship and map where you want it to go
• Understand the clients business and educate yourself about the industry
• Seek feedback and act on the information clients provide
• Show appreciation for your clients – send them personalized notes, work with them on projects they are interested in, celebrate the clients successes, offer education and CLE
• Be involved in your clients business- do business reviews with them, warn of issues before they become problems, be direct and forthright
• Cross sell where appropriate and ensure the clients know what other work the firm does

Success is often determined by how you execute a plan. Make a list of your top 10 or 15 clients and determine if any could be a super fan or maybe already are. Develop and execute a plan for those clients. Time will change your top clients however if you develop a program that works you will be able to modify it for almost any client you have.

Tuesday, May 29, 2012

08:15 – 08:30 Media Photo Opportunity
Jasper Room

08:30 Session begins
Jasper Room, closed to the media

15:00 Closing Press Conference
Fairmont Hotel Macdonald

That decision had held that Tucows.com could bring an action for a declaration of its rights to a domain name in an Ontario court, on the ground that the dispute involved "real or personal property located in Ontario". In this case, Tucows.com was the registrar and the owner of the domain name Renner. com. The other party was a Brazilian company that owned the trade mark 'Renner' (though not apparently in Canada.)

The Court of Appeal had to consider a number of issues to come to its conclusion. It strikes me as well written and well controlled. It dealt with the relationship between a local lawsuit and a proceeding under the WTO's UDRP (since Renner had started a UDRP proceeding before Tucows' action in Ontario)(para 26 – 31), the nature of a licence as property (para 41 – 66), the application of the rules of jurisdiction in a declaratory action (para 34 – 35), and others.

The Court went to first principles about what 'property' is – a number of relationships about which the law will support claims. Which relationships and which claims are discussed in the judgment.

It also decided that when the domain name registrant and the registrar were in Ontario, the property in the name were in Ontario, at least for the purpose of supporting an action under the Ontario rules.(para 67 – 72)

Presumably the decision of the Supreme Court of Canada not to give leave is a strong indication that this reasoning is valid across the country, at least on the property issue and at least in common-law jurisdictions. How the rules of practice may vary is a different question, though the Ontario CA did deal with higher-level issues like 'real and substantial connection' (para 73) as well as with the wording of Ontario's rules.

Does this sound right to you? Does it change the advice you might give to a client about a domain name, and if so, how? Is a dispute in Quebec likely to come to a different conclusion on the property question?

At times, then, things go south. I'm not sure why that should be — that south should be the direction of disaster, I mean. As a Canadian, I'm pleased, I guess, that nothing going south can geographically land in my country, but it still leaves me a bit puzzled. Perhaps the expression is an elegant variation on going downhill, which is slightly more understandable as a disaster movement, perhaps. Although, the expression "It's all downhill from here" suggests that coasting to the bottom isn't always horrible, as any kid on a bike will know.

As part of the general downward movement of disaster, things sometimes go pear shaped. This is down because the bulge is at the lower end; if it weren't, you'd have things going "mushroom." But why "pear shaped" instead of "foot shaped" or "pyramid," for instance? I resist the thought that it's because of the migration downward of avoirdupois in some as a function of aging. No, I side with the OED who claim that it's an RAF expression (the earliest use is from the 1980s) for a cock-up. There's something here perhaps: I mean, you can see how down would be a bad direction much of the time if you're in an air force. And as for the "pear," some suggest that it means to describe a badly executed aerobatic loop, though any pilot who could limn one of those would be surely have to be more expert than the average, I'd have thought.

Then things go down the tubes for some. This is easier to see as a disaster plan: that way lie ever bigger pipes until before you know it you're being dealt with in some effluent treatment plant, than which few things could be worse—except perhaps finding yourself emitted out to sea, as you still might in Halifax or Victoria, I gather.

Lurking beneath all of these idiomatic expressions and metaphors of descent has to be, surely, the Big Downer, the Ultimate Disaster—that visit to the underworld. Because, let's face it, things may in fact go to hell. If it's only a little hell, or perhaps the outskirts of the inferno, we'll make light of it as we watch things go to hell in a handbasket. The alliteration helps here, speeding things along; as does the basket, if you think about it, because once in it, a thing can offer no more resistance than could your groceries. And it has a nice domestic ring about it, which could well be the sound you'd want to hear if you were tucked up next to the devil's food cake and on your way . . . below.

Here are the three most-consulted English-language cases on CanLII for the week of November 14 – 21.

♨ 1. R. v. Pelech 2012 ABCA 134

[1] This appeal addresses the proposal that a trial judge needs to have in contemplation the rule in Hodge’s case, when considering evidence of impaired driving.

♨ 2. Bruni v. Bruni 2010 ONSC 6568

♨ 3. R. v. Maybin 2012 SCC 24

[2] This appeal raises the question of when an intervening act by another person severs the causal connection between the accused’s act and the victim’s death, thereby absolving the accused of legal responsibility for manslaughter.

The most-consulted French-language decision was Guay inc. c. Payette 2011 QCCA 2282 [leave to appeal to SCC granted http://scc.lexum.org/en/news_release/2012/12-05-17.3/12-05-17.3.html]

[1] L'appelante interjette appel du jugement rendu le 8 juin 2010 par la Cour supérieure du district de Québec (M. le juge Jean Lemelin), qui rejette sa requête en injonction permanente, requête par laquelle elle demandait au tribunal d'enjoindre à l'intimé de respecter deux clauses de non-concurrence et de non-sollicitation;

Presumably the decision of the Supreme Court of Canada not to give leave is a strong indication that this reasoning is valid across the country, at least on the property issue and at least in common-law jurisdictions

No more (or less) valid than if leave hadn't been sought.

David

Grantland is an online forum that is born digital and has worked backwards, so-to-speak, to the point where it also publishes, in print, a quarterly edition which is intended to highlight some of the more notable pieces at the site over the past quarter. It is this born digital and then published in print significantly later that I find interesting. In this case the print form is being used as a review or perhaps sober-second-thought. I do not think that this is paradigm shift in the nature of publishing but it do find it interesting that it exists. The current quarterly is only the second issue, so I cannot ascertain whether the print venture has been a success or what it means, perhaps it is an exception that proves a rule but the existence of the print edition in this form is something to note.

Speaking of paper, today is a special day at the Schulich School of Law as it is the day we hand out special paper or parchment that takes at least three years to obtain. I just want to use this platform to wish our graduates the best. I know many of them and can attest that they will do well for themselves and represent the school well in their future endeavours. If you happen to be an alumnus or are just interested in convocation and a well done valedictory address you can find a web archive at this linked url.

How about legal fees? Presumably they are safe from consititional attack, though far in excess of the hearing fees in most cases, because they are not imposed by the state.

However, it occasionally publishes a print version. It did so to mark the Centre for Philanthropy's National Summit on philanthropic issues last November. It also permits the download of an entire issue at a time, as well as reading any or all of the content online.

So: the boundary between print and electronic is, as Mark says, porous and not fixed.

In this case the court or jury could fairly hold that the caller was partly responsible, since the course of conduct meant that it was reasonably foreseeable that the driver would engage with her text message while driving, just as he had done with the previous one, and the one before that. The driver was clearly also responsible, but it's not obvious that he was 100% responsible.

On different facts – where the caller/texter did not know where the recipient was or did not know that he was going to read or answer a message while driving, the caller/texter would not be liable. But it's not the remoteness that makes that so; it's the usual tort tests of causation and reasonable foreseeability.

Perhaps David "Causation" Cheifetz has a more precise view…

John Gregory kindly told us about the May 17 private bill to amend the Ontario Electronic Commerce Act, 2000 for real estate documents.

The main change in the bill will be that real estate documents are no longer excluded. This would give effect to a recent recommendation by the Canadian Uniform Law Conference. The change is an important piece of housekeeping and we should make it.

John questioned we should make some added changes that are in the bill. In my view, it would be a mistake to make these added changes, and we should remove them from the bill. But we do need to study a morass of old and new laws on real estate documents and to reform them.

Added changes

Currently, the legal formalities for, say, giving a 5-year lease of a small store are perhaps entirely different from those for, say, giving a 1-year lease of a very large aircraft. We must sign and seal the former, but we can perhaps use our judgment on how we execute the latter.

John has previously said that the Act was purposely "minimalist" and "technology-neutral," like the UN model and Acts in other jurisdictions.

We'll continue to refine the process for electronic signing, for everything from buying a book over the internet, to securely signing a contract using a service like DocuSign or perhaps Cosign. We'll continue to use Teranet's secure process for registering electronic documents. The "minimalist" and "technology-neutral" approach accommodates these refinements.

The Act now says that, where the law would require an electronic document to be signed, it must have an electronic signature. This is electronic information that a person creates or adopts in order to sign the document and that is in, attached to or associated with the document. We'd probably feel that this was a good test.

However, the Act may require more for some documents. For these documents, the electronic signature must be more "reliable." It must be more "reliable" for the purpose of both identifying the signer and associating the electronic signature with the document. Whether the electronic signature is "reliable" depends on "all the circumstances." These include "any relevant agreement, the purpose for which the document is created and the time the electronic signature is made." We'd probably wonder what this requires and why it might be needed.

The documents for which the electronic signature was to be "reliable" in the above ways were to be described by regulation, but there's no regulation. This confirms that we haven't yet needed to use the "extra-reliable" test.

The bill would say that some real estate documents must meet the "extra-reliable" test; a mere regulation won't do the job.

The bill would use the words in the old exclusion to describe the real estate documents that must meet the "extra-reliable" test. This is, "Documents, including agreements of purchase and sale, that create or transfer interests in land and require registration to be effective against third parties."

Defining a kind of document is bound to cause confusion. The above words are especially confusing.

For example, any agreements can create an "interest in land," if a court will order "specific performance" of it. The agreement creates the interest, because equity regards something as done where it ought to have been done. For an agreement of purchase and sale (which the words specifically mention), the courts routinely ordered specific performance, because every piece of land is unique. Lately, the courts have accepted that many properties are so similar that damages are an adequate remedy. It doesn't seem to be a good reason for deciding whether a document must meet the "extra-reliable" test, that a court will order specific performance of one agreement, but not another.

Or, for example, the Ontario Land Titles Act either guarantees some registered interests in land or gives priority to some registered interests in land. The Act doesn't directly deal with whether a document is "effective against third parties," or treat all documents the same way. For example, a grant of a perpetual right of way needn't be registered, but a lease for a period yet to run of more than three years must be registered. This doesn't seem to be a good reason for deciding whether a document must meet the "extra-reliable" test.

When we discuss the above words, we tend to refer loosely to the documents to which the words might apply. We call them "land transfers" or "documents of title." This can hide the true effect of describing a document according to whether it creates an interest in land and should be registered.

Real estate documents raise many formal issues. Some formalities are ancient, like a seal on a deed, or written and signed evidence under the Statute of Frauds. Even the realtors' standard agreements of purchase and sale purport to be "sealed," in order to make an offer irrevocable. Section 13 of Land Registration Reform Act does away with a seal on a transfer, charge or discharge. Section 21 does away with writing and signing on an electronic document that creates an interest in land.

John Gregory's articles on electronic documents and electronic seals, and the comments on them (including mine), deal with these issues.

Conclusion

We need to study the morass of old and new laws on real estate documents and to reform them. The added changes in the bill only touch the surface of this morass. For the time being, we should make the important housekeeping change recommended by the Canadian Uniform Law Conference, by removing the exclusion for some real estate documents. We should defer the added changes in the bill until we can study the issues and deal with them fully.

This may disappoint people in the real estate industry, but they would be wise to press for a full solution. In the meantime, the above articles may show that our existing laws aren't as serious an obstacle to electronic transactions as might appear.