Category Archives: Court

Quebec government sued for not using open source

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A Montreal-based open source association has launched a lawsuit against the Quebec government for procuring proprietary software (an upgrade to Vista) without considering open source alternatives.   Ultimately this comes down to whether the Quebec government followed their own procurement rules.   And of course it isn’t as simple as if a commodity like paper was being purchased.  There are a lot of factors to consider when comparing software choices, especially when considering traditional software vs open source.

Take a look at this ITWorld Canada article about it.  I’m quoted in the article. (And yes, I’m in London, not Toronto.)

Court ruling threatens to reveal YouTube users

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For the London Free Press – August 11, 2008

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An American judge’s recent order requiring YouTube to release information to Viacom in a US$1-billion lawsuit had many privacy advocates in an uproar – and rightly so.

U.S. District Court Judge Louis Stanton recently ordered Google to hand over all YouTube viewership records.

Viacom sought this order to determine whether pirated content is more popular than non-pirated content, which would indicate that YouTube has a financial interest in allowing this practice and encouraging the violation of copyright laws.

YouTube is owned by Google. Viacom is suing Google for not protecting copyrighted materials. The lawsuit deals with copyright and materials published on YouTube, a controversial subject to begin with.

Many privacy advocates publicly displayed their rage and frustration against the order. In a July 3 commentary, the Washington Post’s Michael Arrington writes, “Judge Stanton is a moron. And Google simply cannot hand this data over without facing a class action lawsuit of staggering proportions.”

Though other privacy advocates have not been as blunt, they have voiced their opinion in the media, including on YouTube’s website.

The reason for their frustration is that although Viacom is to use the information for the sole purpose of litigation, there is no assurance it would not use the information for other improper and unintended purposes.

The information to be handed over to Viacom included viewers’ login IDs and IP addresses, which could be used to identify those individuals, their searches and what they have viewed online.

Many advocates have suggested that there are other ways to satisfy the needs of the lawsuit without releasing the information and that those options should have been explored before the order was granted.

One option would have been to take information out of the data that could be used to identify YouTube users. The loud outcry by many privacy advocates may have had an influence on Google and Viacom’s decision to agree to this approach. In short, the agreement is that the information handed over to Viacom will not be usable to identify YouTube users either directly or by reverse-engineering.

Not everyone is of the view that the Google-Viacom agreement will resolve the privacy issues raised by the order. Some privacy advocates are still frustrated and believe the database cannot be made truly anonymous and that some private user information is bound to be released to Viacom.

Though Stanton’s order was granted in an American court, Canadian YouTube users are affected by this decision.

Ontario Information and Privacy Commissioner Ann Cavoukian publicly urged Google to appeal Stanton’s ruling. She is of the view that users cannot be fully protected from the improper use of the information.

“It is not acceptable to allow copyright enforcement to come at the expense of users’ privacy,” she said.

There are two important lessons here. First, litigators and courts need to consider privacy issues when dealing with third-party information and limit its use as much as possible. Second, businesses should keep as little personal information as possible for as short a time as possible.

Case clarifies tests for ‘fair comment’

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For the London Free Press – July 28, 2008

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A recent Supreme Court of Canada decision concerning a libel suit against a radio host referred to the changing attitudes surrounding public comment and defamation in today’s modern and technologically savvy society.

In WIC Radio Ltd. v. Simpson, the court recognized that in an era where everyone can be a publisher, people may react to comments and interpret people’s comments differently than before.

The case considered whether comments made by a well-known radio talk-show host about a social activist were actionable as defamation. The Supreme Court clarified the tests to determine the parameters of the “fair comment” defence.

In his portion of the decision, Justice Louis LeBel stated:

“There is no doubt that a comment may be defamatory. It must simply be borne in mind that just because someone expresses an opinion does not mean that it will be believed and therefore affect its subject’s reputation.

“This is all the more true in an age when the public is exposed to an astounding quantity and variety of commentaries on issues of public interest, ranging from political debate in the House of Commons, to newspaper editorials, to comedians’ satire, to a high school student’s blog. It would quite simply be wrong to assume that the public always takes statements of opinion at face value. Rather, members of the public must be presumed to evaluate comments in accordance with their own knowledge and opinions about the speaker and the subject of the comments.”

The law will never evolve as fast as technology’s effects. Sometimes that’s good, as it allows things to sort themselves out without changes in the law not in our long-term interest. It’s encouraging, however, to see comments like this, as it shows the Supreme Court considers how the law should evolve in modern reality.

It is quite true that the Internet and other methods of communication cause us to rethink many things.

Justice LeBel’s point is that because we are more used to hearing opinions and points of view from diverse and numerous sources, we are less likely to jump to negative conclusions about the individual being commented on. In other words, a negative comment or two from one or two sources is less likely to make the public think less of the individual, which is the basis of defamation.

And a higher threshold for making the public think less of you can make the traditional cease-and-desist letter in response to that comment a risky move. In what has been dubbed the “Streisand effect,” that kind of response can backfire by bringing even more attention to the comment. As well, a perceived over-sensitive reaction to a comment can actually legitimize the comment.

When faced with the publication of a negative comment, don’t just assume it will be believed. A strong reaction in response demanding the comment be deleted, or some other action be taken, might bring more attention to the initial comment, legitimize it and subject you to ridicule.

Body of evidence courts embracing technology

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For the London Free Press – July 21, 2008

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The image of lawyers going to court carrying boxes of paper is slowly becoming obsolete. That paper is being replaced by electronic files.

To encourage the use of electronic documents in court, the Canadian Judicial Council recently published a document drafted by the judges technology advisory committee entitled National Model Practice Direction for the Use of Technology in Civil Litigation. It’s available online at www.cjc-ccm.gc.ca.

The document encourages the use of electronic evidence and provides direction for compatible technologies and consistent use to give all parties to litigation, including the judge, more efficient access to evidence and documents.

It also may push along those lawyers who have not yet embraced electronic documents.

The council and committee are made up of of trial and appellate court judges from across Canada. The committee’s mandate is to make recommendations about effective use of technology in the courts.

The Practice Direction document aims to encourage parties in a proceeding to “consider the ways in which the use of technology might lead to the more efficient conduct of the litigation.”

Though its guidelines aren’t mandatory, the committee encourages their adoption in proceedings:

- where much of the documents are in electronic format;

- where there are are more 1,000 documents or 3,000 pages involved;

- where there are more than three parties;

- and where the proceedings are multi-jurisdictional or cross-border.

The guidelines encourage electronic documents in courts and set out a framework to make the process work smoothly.

The committee encourages parties to start thinking about using Practice Direction guidelines from the earliest stages of proceedings.

For example, considering whether they hold any potentially discoverable electronic documents or whether there are any limits on discovery that may be agreed between the parties.

The time saved by using electronic documents can be significant. For example, being able to search large numbers of documents for content and keywords –just as one searches the Internet — can be a tremendous time-saver.

In addition to making the process more efficient and organized, the guidelines can cut costs.

In his 2007 Civil Justice Reform Project report — available at www.attorneygeneral.jus.gov.on.ca — former Associate Chief Justice of Ontario Coulter Osborne outlines the monetary benefits of adopting technology in civil litigation.

“In a case involving 50,000 documents, the cost of producing five copies of each document at $0.25 per page is $62,500,” he says. “In contrast, scanning the documents by a company offering document and litigation management services may cost approximately $12,000.”

The advantages of electronic evidence are compelling, even in cases with relatively small amounts of documents. Perhaps the paperless courtroom will arrive before the paperless office.