Tag Archives: Canada

When legal copying is illegal (or at least reversible)

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Eugene Volokh has a fascinating post re: how much judicial copying is too much:

Cojocaru v. British Columbia Women’s Hospital & Health Center — decided [14 April 2011] by a 3-judge panel of the B.C. Court of Appeal, the highest court in British Columbia — reverses a trial judge’s decision because,

In the case at bar, the reasons for judgment run to 368 paragraphs (105 pages) in length. The trial judge copied, without so acknowledging, 321 paragraphs almost word-for-word from the respondents’ written closing submissions (with inconsequential changes, such as replacing phrases like “it is submitted” with phrases like “I have concluded”). Forty paragraphs were written in the trial judge’s own words and the remaining seven paragraphs contain a mix of passages copied from the respondents’ written submissions and passages written in the words of the trial judge.

Now some sources have characterized the trial judge’s sin as “plagiarism”….

For his part, Volokh thinks the panel was correct to reverse the trial judge, though not because the copying constituted plagiarism:

[A]s the B.C. Court of Appeal panel majority understood it, [the problem] is that a judge is supposed to “independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him,” and simply adopting hundreds of paragraphs of a party’s papers casts doubt on that. [emphasis added]

While Volokh acknowledges that judicial copying is sometimes appropriate, he still condemns the trial judge’s copying here, noting that

the judicial system tries to balance judicial engagement and efficiency.

I am not sure what to make of this proposed dichotomy between “judicial engagement” and “judicial efficiency”.  Doubtless, these two concepts can be in opposition along a continuum:  the more one “engages” with a case, the less “efficient” one’s decision-making process might be (and vice versa).

Just because “engagement” and “efficiency” can be in opposition, however, doesn’t necessarily mean that they are.  A judge could be exceedingly inefficient in rendering a decision (e.g., by personally handwriting the entire opinion with her non-dominant hand when both she and her clerk can think and type much faster) and also extremely unengaged (e.g., daydreaming all the while).  The relationship between the two concepts can be quite unclear.

Because of this uncertain logical relationship between “engagement” and “efficiency”, I humbly submit that it makes the most sense to inquire directly into whether the trial judge “engaged” with a case, not to use “copying” as a proxy for “efficiency” as a further proxy for “engagement.”

Indeed, dissenting appellate Justice K. Smith makes just such a direct inquiry here.  Smith turns to the underlying facts of this case to argue that

there are signs in the reasons that the trial judge applied his mind to the issues.

And here is the curious thing:  Justice Smith renders an exhaustive, 106-paragraph analysis of the trial court’s decision in the process of reaching and defending his position.  In stark contrast, majority Justices Levine and Kirkpatrick take merely 22 paragraphs to conclude

that there is no principled basis to deal with these appeals on their merits because the trial judge’s reasons for judgment cannot be considered to represent his reasons, do not meet the functional requirement of public accountability, and do not allow for meaningful appellate review. 

Perhaps I am being too hard on Levine and Kirkpatrick.  Perhaps opinion length is an equally unreliable proxy for engagement.  However, reading through the appellate opinions, I think that dissenter Smith “engages” far more than the majority justices.  His is not the most “efficient” judicial decision, but it does explain its reasoning far more thoroughly (and persuasively) than the majority’s arguably conclusory opinion.

Copying isn’t always bad, as Smith goes to great lengths to explain.  I’d love to hear a robust defense of the opposing position.  Unfortunately, as is so often the case, the anti-copying arguments here come up a little short.

Oh Canada

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I’ve made the point here before that the music industry inexplicably declines perfectly good revenue sources simply because they are “less” than what they are expecting.  At the risk of Monday-morning-quarterbacking their business model, here’s more proof from north of the border, courtesy of Michael Geist:

Pandora, the popular U.S. online music service filed for an initial public offering last week, provided new insight into hugely popular company that spends millions of dollars in copyright royalties. Pandora users listened to a billion hours of music in the last three months of 2010. Given U.S. laws, the Pandora prospectus notes that it paid for the privilege of having its users do so, with the company spending just over half of its revenue on copyright fees – $45 million in the first nine months of 2010.

The numbers are striking since it points to a growing source of revenue that is largely being missed in Canada. Millions of dollars are now generated from online streaming royalties in the U.S., yet many companies are avoiding the Canadian market. The reason, as Pandora explained last year, are the royalty demands of the major record labels. As Tim Westergren stated last fall, “as long as rights societies take this approach, they will prevent Pandora from launching to Canadian users.” While CRIA tried to claim that the decision to avoid the market was a function of Canadian copyright law, Pandora indicated that it is the fee demands, not the laws that are the stumbling block. With millions now being paid for streaming music in the U.S., it is notable that Canadian interests would seemingly prefer to receive nothing rather than the millions that could potentially be on the table.

Quick Review: Radiant City

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I’m always on the lookout for movies having to do with suburbia. I recently ran across Radiant City at a local library and found that it had earned some recognition at film festivals (including the 2006 Toronto Film Festival). Here are my thoughts on this 2006 “mockumentary” set in the suburbs of Calgary:

1.If you have read any critiques about suburbia, you are likely to see it discussed in this film: sprawl, too many cars that everyone is dependent on, lack of community where no one knows their neighbors, too much private space and not enough public space, no activities for teenagers, a lack of mass transit, health issues (obesity), a lack of walkability, big box stores, wasted land, the solution of New Urbanism, and on and on.

1a. A number of anti-sprawl experts (or “stars”) are featured including James Howard Kunstler and Andres Duany.

1b. There are a number of “statistical interludes” throughout the film that deliver facts about the horrors of suburbia.

2. The film tries to set up fictional family storylines to follow. I didn’t find any of these to be compelling as it seemed like the characters were simply there to break up the facts of the documentary. One of the storylines, of a father who is acting in a satirical musical about suburbia, is particularly obvious.

3. The many shots of the Evergreen neighborhood outside of Calgary are both beautiful and jarring. The homes featured in the films are on the edges of suburban development so there are plenty of open fields (mostly dirt), empty lots filled with construction equipment, single-family homes built very close to each other, concrete sounds barriers and highways that cut off views and walking, and beautiful skies (we are told at one point that the mountains are off in the distance – you could see them if the guy next door would open his front door so you could see through his house).

Overall: you can find the same critiques in many other places. I don’t think the fictional storylines added much as the main point seemed to be the commentary of the experts and the statistics that are meant to get viewers to question their assumptions about suburban living. If you already are opposed to sprawl and suburbs, your likely to find this film preaching right to you.

(This film was well-received by a limited number of critics at RottenTomatoes.com: the movie is 93% fresh with 14 out of 15 positive reviews.)

Why add this line in interview about Netflix in Canada: “Americans are somewhat self-absorbed”

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In an interview with The Hollywood Reporter, the Netflix CEO (and co-founder) discussed the company’s new foray into the Canadian market. Netflix prices in Canada will be one dollar cheaper: $7.99 vs. $8.99 in the United States. But the CEO added another line that seems superfluous to the discussion and may not be helpful to his company’s efforts in the American market:

THR: American services when they enter the Canadian market typically charge the locals more than they charge stateside. Why the discount for Canadians?

Hastings: We want to provide an incredible value for Canadians, and it’s the lowest price we have anywhere in the world for unlimited screenings. And anyone can try it for free for a month. It’s pretty addictive.

THR: Are you concerned that American Netflix subscribers will look north and ask for the same discount Canadians get at $7.99?

Hastings: How much has it been your experience that Americans follow what happens in the world? It’s something we’ll monitor, but Americans are somewhat self-absorbed.

I’m guessing more Americans will pay attention now to this than would have before. Whether he is right or wrong about Americans being self-absorbed, why potentially hurt a large market when he didn’t have to?