Saturday, February 16, 2008

"Don't Use My Song In Your Campaign"

CTV reports that Tom Scholz, founder and lead-songwriter for the rock band Boston, has told Mike Huckabee to stop using the group's song, More than a Feeling, in the Arkansas Governor's quest for the Republican nomination.

Sholz is a supporter of Barack Obama.

Is there a legal basis upon which a songwriter can stop a candidate's unauthorized use of a song in an election campaign?

Volokh has a good analysis of how U.S. copyright law answers this vital question.

Short answer - probably not.

- Garry J. Wise, Toronto

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Who Will Police the Police?

We are seeing far too many of these kinds of incidents.

Baltimore:

Vancouver Island:



Hillsborough County, Florida:

- Garry J. Wise, Toronto

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Obama As The New McGovern?

Jeralyn Merrit at Talk Left wonders whether an Obama nomination, effected largely through a strategy of red-state caucus "insurgencies," could set the Democratic Party up for a George McGovern-style general election collapse.

Short version: Obama - can he win?

- Garry J. Wise, Toronto

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National Lawyers Guild: Justice Scalia "Unfit to Sit" Over Torture Comments

U.S. Supreme Court Justice Antonin Scalia has ignited yet another firestorm over controversial comments regarding torture, made in a BBC interview broadcast last Tuesday.

During the interview, Scalia dismissed as "absurd" the suggestion that the U.S. Constitution prohibits the use of physical force in terror-related interrogations:

It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that."

...Is it really so easy to determine that smacking someone in the face to find out where he has hidden the bomb that is about to blow up Los Angeles is prohibited by the Constitution? Because smacking someone in the face would violate the 8th Amendment in a prison context. You can’t go around smacking people about.

Is it obvious, that what can't be done for punishment can't be done to exact information that is crucial to the society? I think it's not at all an easy question, to tell you the truth.

In response, the U.S. National Lawyers Guild, a "public interest/human rights bar organization," headquarted in New York called Scalia "unfit to sit" on the Court, and called for his recusal from any case considering the constitutionality of the use of torture as an interrogation technique:

National Lawyers Guild Calls on Justice Antonin Scalia to Recuse Himself From Interrogation-Related Cases

NEW YORK - February 15 - The National Lawyers Guild calls on Supreme Court Justice Antonin Scalia to recuse himself from any case coming before the Supreme Court involving the constitutionality of torture as an interrogation technique. In a BBC interview that aired on Tuesday, Scalia defended the use of torture to extract information from persons in custody by law enforcement officials in some cases. Although no case involving the use of torture is currently before the Court, recent events suggest that such a case may be forthcoming.

Guild President Marjorie Cohn said: “The Guild is appalled that a sitting Justice of the United States Supreme Court has ventured in a public forum his belief that it is justifiable to attempt to extract information from persons in custody by the use of torture. A justice of the highest court in the land, sworn to uphold the Constitution, whose views so undermine the fundamental right of security of the person guaranteed by the Bill of Rights, is unfit to sit on that Court.”

The thrust of Scalia’s recent remarks is that he does not believe it is clear that the government is precluded from using coercive interrogation to prevent an imminent terrorist attack. He says that the Constitution forbids cruel and unusual punishment, but if torture is not meant as punishment, it may not be unconstitutional. Surely Justice Scalia knows that torture is unlawful under the U.S. Torture Statute (18 USC 2340) and the U.S. War Crimes Act (18 USC 2441). Two years ago, five retired U.S. military officers who had entered a case before the Supreme Court for Salim Ahmed Hamdan sought Scalia’s recusal after he publicly voiced skepticism abut the rights of Guantanamo detainees. Scalia declined to recuse himself.

Further reading:

- Garry J. Wise, Toronto

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Natural Selection in the New Millenium


(h/t: Galloping Beaver)

- Garry J. Wise, Toronto

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Thursday, February 14, 2008

Fatal "Happy Slap" Videographer Guilty of Aiding and Abetting

A 15 year-old British girl faces jail time after pleading guilty to aiding and abetting in the "happy slap" manslaughter of a West Yorkshire man.

The teen videotaped the incident on her cell phone.

According to Wikipedia, "Happy slapping is a fad in which an unsuspecting victim is attacked while an accomplice records the assault (commonly with a camera phone or a smartphone)."

Grahame Stowe, a criminal lawyer with Grahame Stowe Bateson, a law firm in Yorkshire, said: “More than ever before young people are turning to extreme violence, in some cases for no reason other than entertainment.

... He added: “The principle that videoing a criminal offence taking place can be considered aided and abetting could have some serious ramifications.”

- Garry J. Wise, Toronto

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Vote for Him If You Must... Just Don't Let Him Drive!

Which candidate for a U.S. Presidential nomination:

racked up a strong 17 traffic violations, including seven in an eight-day stretch? And better yet, while this was from 1988 through 1991, he didn't actually pay those violations until last year, almost two decades later.

Quiz Law has the scoop..

- Garry J. Wise, Toronto

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Valentine's Day Special

Valentine's Day is lighting up the law blogs with these fine selections:

And of course, Happy Valentine's Day to all.

UPDATE:

Writer Stephanie Mah of CCH Canadian Law Student e-Monthly adds to our Valentine's Day list with this law firm ad that tries to put the "romance" back in divorce.

- Garry J. Wise, Toronto

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Wednesday, February 13, 2008

"Garry Is..."

Yet another Facebook time well-waster (from Rachel S.) to amuse your friends and loved ones...

Google: "[YourName] is."

See the truth that then unfolds before your eyes.

You will laugh. You will cry.

And then, you will blog about it....

Here are my top ten results:

Garry is....

  • named after Garry Kasparov, the last human chess master to be beaten by a machine
  • the brilliant biochemist I could never be
  • very cautious about becoming involved in close relationships and sharing his feelings
  • the right choice for Indian coach
  • going out of town this weekend and I am going to be alone. NICE!!
  • totally UNPREDICTABLE, and not even his own manager or band know what he´ll do next onstage
  • the most enjoyable Elvis tribute artist I have met
  • a past Chief Financial Officer of the Professional Speakers and Mentors Association
  • one of 18 musicians to win a Grammy award for the 1998 recording of Steve Reich's Music for 18 Musicians
  • tired and emotional - he returns to Shirley and Heather's flat. He explains the truth - Hazel did love Minty...
- Garry J. Wise, Toronto

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Democratic Primaries: Gloves Coming Off

If these comments by Ambassador Joseph Wilson, a Hillary Clinton surrogate, are any sign of what is now to come, it is fair to say the gloves are about to come off in the heated battle for the Democratic presidential nomination:

Sen. Barack Obama's promise of transformation and an end of partisan politics has its seductive appeal. The Bush-Cheney era, after all, has been punctuated by smear campaigns, character assassinations and ideological fervor.

...But will Mr. Obama fight? His brief time on the national scene gives little comfort. Consider a February 2006 exchange of letters with Mr. McCain on the subject of ethics reform. The wrathful Mr. McCain accused Mr. Obama of being "disingenuous," to which Mr. Obama meekly replied, "The fact that you have now questioned my sincerity and my desire to put aside politics for the public interest is regrettable but does not in any way diminish my deep respect for you."

Mr. McCain was insultingly dismissive but successful in intimidating his inexperienced colleague. Thus, in his one known face-to-face encounter with Mr. McCain, Mr. Obama failed to stand his ground.

What gives us confidence that Mr. Obama will be stronger the next time he faces Mr. McCain, a seasoned political fighter with extensive national security credentials? Even more important, what special disadvantages does Mr. Obama carry into this contest on questions of national security?

How will Mr. Obama answer Mr. McCain about his careless remark about unilaterally bombing Pakistan - perhaps blowing up an already difficult relationship with a nuclear state threatened by Islamic extremists? How will Mr. Obama respond to charges made by the Kenyan government that his campaigning activities in Kenya in support of his distant cousin running for president there made him "a stooge" and constituted interference in the politics of an important and besieged ally in the war on terror?

How will he answer charges that his desire for unstructured personal summits without preconditions with a host of America's adversaries, from Mahmoud Ahmadinejad to Kim Jong Il, would be little more than premature capitulation?

Contrary to the myth of the Obama campaign, 2008 is not the year for transcendental transformation. The task for the next administration will be to repair the damage done by eight years of radical rule. And the choice for Americans is clear: four more years of corrupt Republican rule, senseless wars, evisceration of the Constitution, emptying of the national treasury - or rebuilding our government and our national reputation, piece by piece.

In order to effect practical change against a determined adversary, we do not need a would-be philosopher-king but a seasoned gladiator who understands the fight Democrats will face in the fall campaign and in governing.

Mr. Wilson is right.

It's high time the focus of discussion on both sides transcended the current cults of personality.

America must seriously assess who is best qualified to navigate the very deep, hot waters the country finds itself in.

For my money, that person is Hillary Clinton.

- Garry J. Wise, Toronto

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Tuesday, February 12, 2008

Why Obama Trumps Clinton in a Debate with McCain

Prescient, eh? As you said, we'll see.

But here's a recap of my arguments on the optics of a Clinton-McCain debate vs. an Obama-McCain one.

The problem I foresee comes on the issue of national security which, while it is dropping south of the economy as Americans' prime concern, is still a hot button. More to the point, it is the main issue for Republicans.

Karl Rove laid out the strategy for the Bushites two elections ago - Americans trust Republicans with national security over Democrats every time so keep voters afraid. On top of that, gerrymander election boundaries and suppress Democratic voters.

So, in a Clinton-McCain match what happens?

Hillary will fight McCain in her wonkish way by arguing she has better policies. But TV debates are an emotional game and by fighting on McCain's Republican ground - who's better for national security - she loses.

While McCain may not win the general election under any circumstances - given that 2/3 of Americans think their country is on the wrong path - Hillary will have a tougher time for these reasons and the simple fact as I noted before, that she is not well liked or trusted even by many Democrats. That's why her primary support is always low outside her power base.

Match up Obama with McCain and the scene is quite different. You've got Lincoln-esque tall, lean Obama, whose height and thus appearance of stature is at least equal to McCain's.

If Obama is smart he will strategize his debate around McCain's notorious temper. While McCain is unlikely to let a woman knock him off balance in a TV debate, if Obama throwns a few well-placed jabs, McCain might just blow his cool.

If McCain reveals himself that way, he is toast. More to the point, Obama’s presence as a man who is fresh, serious-minded, but strong - strong in generosity and mind and spirit too - will show up and whither the bombastic, 71-year old ex-POW.

On a historical note, the tallest candidate wins about 80 percent of U.S. elections because the taller guy seems stronger.

And Barak, at 6’ 1-1/2” towers over McC (5’7”) and Mrs. C (5’ 8-1/2”). This won't hurt.

Everyone says Obama’s supporters want “change.” For years, pollsters have told us 2/3 of Americans are unhappy with the direction of their country. Does this mean 2/3 want change or a return to what they think of as a better time before the current change? Maybe they don’t want change, they want a direction that is less of a change than Bush’s radicalism. They agree to the word change because that’s what they are asked.

Ironically, I could argue that O’s supporters don’t want change, they want stability and an end to the White House Robespierre and his gang of radicals.

Another problem with Mrs. C as a political sell is that she is comes off as someone who is pandering. Remember, this is the team (Mr & Mrs C) that made a religion of triangulation - defeating your political enemies through divide and conquer strategies among interest groups.

The result was Mr. C's slashing support programs for the poor and deregulating the financial industry which opened the door for the current subprime mortgage chaos. So when Hillary says she wakes up every morning thinking of how she can help people, how does that jive with her several years as a Senator - saying nothing about stopping torture, warrantless arrests and wiretapping, the on-going disgrace of Louisiana, caging protesters in free speech zones, the swelling of the US prison population with non-violent and poor offenders, the mass privatizing or elimination of community-oriented government services and so on?

Even though she is memorably quoted (in About.com) as supporting voting rights, she has not stood up - to my knowledge - against the various voting frauds and legal disenfranchisement efforts that have taken place during her time as a Senator. She may be a good person but I think she defines political good as whatever is expedient and furthers her ambitions. Sort of like the Bushes when they don't count Iraqi dead, think Katrina's devastation of poor people's homes is an opportunity for them to move upmarket, and speak as if only Americans died on 9/11.

Rather than stand upon and be remembered for principle, Mrs. C didn't want to rock the boat on Iraq or other corruptions of the Bush Administration for fear of appearing weak or -in every wishy Dem's favorite excuse - giving the Republicans ammunition, like they need it, when her time came to try for the presidency.

Further, her central strategy of claiming leadership experience is somewhat farcical. Without commenting on her experience as First Lady, she showed arrogance and rigidity in her effort to reform medical care in the U.S. Her lack of leadership skills in both legislative vision and the people skills necessary to push visionary legislation through Congress and public opinion do not seem to have improved.

Like Bush, she blames others for mistakes she has made and doesn’t listen to those who disagree with her, as evidence in her dumping her campaign manager for following her queenly dictates.

So what experience is she talking about? Or have we defined-down experience to mean simply showing up for work, going to Congresional hearings on "important issues" and having a business card that says First Lady or Senator? On marketing experience vs change, Americans know there is little a president can actually do without assuming dictatorial powers as Bush has with so-called signing statements he says lets him ignore laws, the Constitution, morality etc.

Americans want a leader who can give the tired, worn down, war-weary and agitated American public a sense of hope for the future and let them get down to it. Someone who is willing to try something other than bombs, wars, threats, ignorance, sadism, lies and tax cuts for the rich that have characterized Bush's monotone psychosis.

On this point, Mr. O is like the coming of Motown in the 60s, while Mrs. C sounds like the latest retread for the disco dance floor. It may be catchy but it has no soul.

- Barry Brown, Toronto

.......

Barry Brown is a journalist and Pulitzer prize nominee with writing credits for the Washington Times, New York Times, Globe & Mail, among other publications. While he gladly offers unsolicited advice, he is not a lawyer. The views expressed are those of the guest blogger, and do not necessarily reflect the views of Wise Law Blog and its authors.

......

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BREAKING: NHL Trade Deadline: JFJ to TSN!

My friend, Pseudonym, at Canada, Eh! sums up what most of us are thinking about today's announcement that TSN has added former Leaf GM John Ferguson Jr. to its roster of commentators for the February 26 NHL trade deadline:

I don't want to sound cruel but hiring JFJ as analyst on NHL trades is like hiring Britney Spears as a parenting expert.

- Garry J. Wise, Toronto

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Travel Advisory: US Customs May Copy Laptop Data

This travel alert from Raw Story should be of specific concern to lawyers and other professionals who store privileged information on their laptop and wireless devices:

Customs agents have the prerogative to examine and even copy data from travelling citizens' laptops they search, CNN's American Morning reports.

"A new alert for travellers: be careful what you store on your laptop or your BlackBerry when entering the United States," warns CNN's John Roberts. "Customs agents can examine your computer and even keep your private information."

CNN reporter Jeanne Meserve adds ominously, "Your banking records, your music choices, your emails, your business contacts -- all can be examined, copied and stored by the government when you enter the country, if they're in an electronic device."

One Pakistani-American IT consultant says that U.S. agents searched his computer on five occasions upon returning from overseas trips, even forcing him to give them access to confidential corporate information.

CNN reports on pending US litigation, seeking clarification of customs officials' authority:

Situations for travelers... are at issue in a lawsuit filed last week by the Electronic Frontier Foundation and Asian Law Caucus in U.S. District Court for the Northern District of California. The suit accuses customs agents of "lengthy questioning and intrusive searches" and seeks clarification on the law that allows such searches.

The San Francisco, California-based foundation, which works to defend people's rights in the digital world, says it knows of more than a dozen cases in which electronic devices such as cell phones, BlackBerries, MP3 players and laptops have been searched by customs agents. In some cases, they have been confiscated and never returned.

"Plaintiffs seek agency records in order to determine what policies and procedures exist governing CBP's questioning and searches of individuals at the nation's ports of entry," the suit says.

The Customs and Border Protection defends the searches, saying the agency does not need to show probable cause to look inside suitcases or laptops. "We have broad search authority at the borders to determine admissibility and look for anything that may be in violation of criminal law," says agency spokeswoman Lynn Hollinger.

Hollinger says electronic devices could contain evidence of possible ties to terrorism, narcotics smuggling, child pornography and other criminal activities.

- Garry J. Wise, Toronto

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The Paperless Courtroom?

Law.com's C.C. Holland on the increasing use of audio-visual presentations in trial courts:

Using visual aids to introduce information can make it more persuasive, says Noelle Nelson, a clinical psychologist and trial consultant based in Malibu, Calif. "People believe what they see to a far greater extent than what they hear," she says.

...Many judges, too, are embracing or even expecting the use of computer demonstrations and multimedia aids during a trial. They offer clear benefits over traditional presentation methodologies by providing more clarity, allowing easier searching for specific data among exhibits -- which can be done with a few keystrokes rather than sifting through piles of paper -- and speeding up the trial process. "Judges are telling us they really enjoy the electronic trials because it makes the case go a lot quicker," says Rick Kraemer, president of Executive Presentations, a trial consulting firm in Los Angeles. "Some judges are saying they'll soon no longer allow paper into their courtrooms -- everything must be scanned and presented electronically."

Ready to jump on the multimedia bandwagon? Marching into court with a grainy video and an amateurish PowerPoint won't be enough. "The juries have expectations of good production value," says [John J. Ammann, a clinical professor and director of the Legal Clinic at St. Louis University School of Law].

- Garry J. Wise, Toronto

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Newmarket Trial: Criminal Charges Over Facebook Threats

National Post reports on a trial at Newmarket, Ontario where a 26 year old man faces charges over threats allegedly made on Facebook against Children's Aid workers who had apprehended his child.

The man had started a Facebook group that included a petition against the CAS.

His lawyer suggests the accused had no criminal intent:

Facebook is an outlet to "blow off steam" and there was no intent by D.S. to threaten anyone, said the lawyer. "People use Facebook today like the way people used to use diaries. They are expressing their personal thoughts or opinions, not an intention to act," suggested Goldstein.

Goldstein explained that even if other people could read what was allegedly posted by D.S., there is still a requirement for the Crown to prove he intended to threaten...

....

Speaking of Facebook, New York Times reports today on the difficulties encountered by those attempting to delete their data from the site. See How Sticky Is Membership on Facebook? Just Try Breaking Free.

According to the Times, Facebook users "can check out any time they like, but they can never leave..."

- Garry J. Wise, Toronto

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The Most Annoying Person in the Blogosphere Award...

... goes to Andrew Sullivan, of course:

Did Bill Kill Hill?

Not so crazy a theory. I've long believed that Bill Clinton is torn between two impulses - a desire to embellish his own record by seeing his wife get the presidency and a desire to embellish his own record by seeing his wife not get the presidency. He is certainly psychologically damaged and complex enough to torpedo his wife's ambitions and equally damaged enough not even to be aware of it. Which makes it all the more Shakespearian. One huge reason not to put the Clintons back in the Oval Office is the lesson of the Bush years. Never under-estimate family rivalry. It f@cks things up.

You have to give the guy credit for creative writing, if nothing else.

Who else could write six or eight hatchet pieces a day against Hillary Clinton for weeks on end without ever repeating himself?

We get it, already, Andrew - you don't like the Clintons.

Perhaps you could return to those picturesque "window view" posts for a while, as you consider whether there is, in fact, any other topic to write about.

- Garry J. Wise, Toronto

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JFK's "Canadian Love Child"

Oh my...

From the Globe and Mail (of all places):

The man who American journalists are investigating as the possible illegitimate son of John F. Kennedy lives in British Columbia and bears a striking resemblance to the 35th president of the United States.

So much so, that people will sometimes stop him on the street.

...He is asking that the DNA samples be sent to David Friend, the Vanity Fair journalist who has been working on the story. "I think their prudence is warranted," Jack said of Mr. Friend and Vanity Fair editor Graydon Carter, who is from Ottawa. He described them as "top-notch journalists" and "people of integrity."

Jack is tall, slim, with a freckled complexion, hazel eyes, and thick reddish-brown hair, parted on the left, swept across his forehead. He has perfectly straight teeth - Kennedy teeth one might be tempted to say. Sitting across from him, the term "boyish" comes to mind.

- Garry J. Wise, Toronto

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Wolcott on "Squeaky Polls"

Vanity Fair's James Wolcott:

I've never bought the national polls showing Obama would be a stronger adversary for McCain than Clinton--I think those polls are as squeaky as the ones that showed Giuliani as the frontrunner all those months. I think Obama would probably beat McCain, but I know Hillary would because the Clintons have been through the thresher before and reflexively know how to judo flip Republican tactics and media attacks, not simply be reactive after taking a shot to the chin the way Gore and Kerry too often did. For better or worse for our democracy, the Clintons "get" the gestalt, know how to read a blitz.

- Garry J. Wise, Toronto

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War: "Not a Day at the Beach"


- Garry J. Wise, Toronto

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McCain in '08

John McCain: Anticipated year of U.S. withdrawal from Iraq: 12,008.

(A fitting parody of the Obama Yes We Can video)

- Garry J. Wise, Toronto

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