It’s the State, Dawg
(No, not Kinsella.)
Dr. Dawg draws attention to the case of anti-Israel Activist Mordecai Briemberg who has been hit with a lawsuit from Canwest for distributing a parody of the Vancouver Sun.
According to the article in Canadian Dimension: “The lawyer for Canwest has confirmed in writing that they have no documents whatsoever showing Mordecai Briemberg’s involvement in any of the allegations made against him. Yet Canwest still refuses to drop their suit!”
Dawg challenges us free speechers to pick up Briemberg’s cause.
Well, Dawg, sorry, no. Not that I don’t despise the use of Slapp suits and the courts in what should be matters of debate and not law; I do. But there is an essential difference between Mr. Briemberg’s unpleasant situation and, say MacLeans magazine’s, or Marc Lemire or Ezra Levant’s.
Briemberg has been hit with private litigation. The Aspers are paying their own freight, hiring their own lawyers and are on the hook for their own costs (and Briemberg’s) when and if they lose. I wish they wouldn’t and if I knew anyone in Canwest ownership or management I would ask them to stop. I might even sign the petition. But Briemberg is an essentially private matter.
MacLeans, Lemire and Levant are being pursued by the State. There is nothing private at all. They are being pursued for an “offence” which I do not believe is any of the State’s business. So I will do what I can to change the law under which the HRCs assert the right to prosecute complaints based upon speech.
I think, Dawg, the difference is pretty clear.
March 29th, 2008 at 1:20 am
Re: Dawg’s apparent conceptual roadblock …
Is it intellectual dishonesty or intellectual vacancy?
Why pick one when you can have both!
March 29th, 2008 at 4:22 am
Is he really so thick that he can’t see the difference? I can sue my neighbour for a number of perceived grievances, it’s up to the court to decide if my suit was baseless and if they do deem it nonsense they would order me to pay all court cost incurred by the defendant.
The HRC pays for the complainant to persecute his/her “Perceived” offender or enemy, to the tune of millions of Canada Taxpayer’s dollars. It cost the whiny wind bags nothing to file a complaint, but the defendant is forced to cover their own legal fees which usually bankrupts them into poverty.
Under British Common Law, Dog, both sides pay their own legal fees and the victor is often awarded “Costs aka court cost and legal fees”. Honestly such deceit or stupidity is amazing.
March 29th, 2008 at 4:43 am
i wondered what the good dr dawg’s field of endeavour was …is he a veterinarian…a professor of sociology…..an anglican prelate …an LLB at osgoode hall…....i was wonderin’...but now from what i’ve read of his ponderous apologetic i know it’s partial thought aborning abortion techniques….what we used to call a quisling….back when black was black and white was white.
March 29th, 2008 at 5:29 am
I am surprised people still take Dawg seriously, he is a typical “This Magazine” lefty.
March 29th, 2008 at 6:38 am
Well, clearing through the muck of ad hominem here(all that the Right has, it seems, when they’re caught in inconsistencies), I’d say the only difference is this: you’re against speech suppression when the state does it, but it’s just dandy when well-heeled individuals and corporations (Black, Levant, Canwest) do it.
In other words, you just want it all privatized.
March 29th, 2008 at 7:38 am
Hate to break it to ya Jay, but I can’t afford to defend myself against either the CHRC or CanWest. Both have war chests that greatly outstrip mine. Even if I was 100% in the right and CanWest came after me, I would probably be forced to settle to limit the financial damage to my family.
I realize that CanWest is operating in an actual court with rules and trained legal professionals, but the bottom line is that more often than not, the side with more money wins.
So if I lose to an HRC or I lose by being forced to settle to limit my damages, I still lose. If Dawg is thinking along those lines then I’m probably somewhat in agreement with him.
March 29th, 2008 at 7:59 am
Sean, the reality is that if you are in the way of a deep pocketed individual he can sue you. It is unfair at one level; but you have a perfect right to counterclaim, represent yourself or find a lawyer willing to work on contingency or pro bono.
Dawg, you are entirely right: I object when the state does it and I don’t object when a corporation or an individual seeks to protect their trademark (regardless of how silly their position is and how likely it is to be tossed out of court.)
If the state represents me – as it does you – I don’t want it suppressing speech. Canwest and the Aspers do not represent me. I rarely buy their products and I don’t watch TV. I contribute little or nothing to whatever wacky things they might want to get up to. That is my choice, I have no choice when the state uses my money to haul people before Tribunals.
And I cannot help but note that if scum like Warman win they get the money despite the fact the state has paid the freight.
March 29th, 2008 at 8:27 am
Slapp suits there ought to be a law. While Canwests motivation may be questionable, the issue of copyright protection is not. Those corporate lawyers gotta earn their keep somehow. Starbucks is famous for going after anything sound-alike – Remember Hanta-Bucks? Evidently it is necessary to be vigilant as copyright can be “whittled away” – corporations have to show a strong history of protecting copyright.
March 29th, 2008 at 8:37 am
Sean,
I might buy that argument if this was the United States. The settlements there are ridiculous. Here, in Canada, settlements are generally based on ability to pay and it’s much more difficult to push through vexatious claims against people who cannot defend themselves.
Also, unlike the United States, costs are awarded automatically upon the plaintiff losing the case. There is no need to countersue for costs.
I’d say for most people, the settlements are more a time issue than a money issue.
Not to mention, if you’re dirt poor, you’re pretty much okay. Canadian courts will not let you “clean someone out” as they do in the US.
I think we have to be realistic here. Even with the best lawyers, these guys have done something wrong: they have violated a trademark. So it’s not really a matter of money here. They could have all the money in the world, and still lose, with a case like this.
March 29th, 2008 at 8:41 am
The ability to pay practice in our common law as well as other standards of not inflicting excessive hardship sometimes result is injustice according to some.
For example, if a person with a yearly income of $25,000 accidently kills your whole family, and you sue… don’t expect a large award in court, unless the person has insurance.
March 29th, 2008 at 7:38 pm
There are a lot more politics to this than meets the eye. What is at play here are two streams of Judaic political thought… one intensely reactionary zionist (the Aspers) and one anti Zionist True-Torah Judaic thinking ( Jews against Israeli imperialism)
http://www.jewsagainstzionism.com/about/index.cfm
They seem to have clashed in this Asper vs Briemberg squabble over the aggressive zionist policy in the west bank peace efforts. It’s a ideological struggle withing the Jewish community in wrestling with justifying the aggressive militancy of zionism and squaring it with Torah teachings.
To their credit, the Aspers kept this in the legitimate law courts where all the rules of evidence apply and the accused is presumed innocent, the burden is on the Asper law team to prove damages.
Just the same, a SLAPP lawsuit has a chilling effect on freely discussing the subject that caused the suit….and there is no doubt in my mind the Aspers want this effect…and to silence anti zionist jews on Israel’s less than stellar record as a peace-promoting nation.
March 29th, 2008 at 8:23 pm
Mike, I’m all for the protection of intellectual property (unlike Jay “music is a service” Currie), and trademark protection. In this case the defendant is CLEARLY in the wrong. That being said, SLAPP suits remain a problem in this country and I’m in the squidgy middle ground where…
– I make enough to be an enticing target
– but I don’t have the resources to hire good representation or the time to defend myself without destroying my business
...and if the threat of SLAPPing/KLAPPing weren’t effective, 99% of the wind would have gone out of Kinsella’s sails YEARS ago.
March 29th, 2008 at 8:26 pm
“While Canwests motivation may be questionable, the issue of copyright protection is not.”
The issue is trademark protection, not copyright. If you aren’t shown to be protecting your trademarks when they’re infringed, you can lose them under law. CanWest doesn’t really have a choice in this matter if they don’t want to lose their valuable brand they’ve invested so much in.
March 29th, 2008 at 9:15 pm
i’ve always found doctor dawg’s political positings insufferably smug….with the sense of self importance oozing from his frame…..i find it akin to an idiot savant doing a rather entertaining impersonation of an inebriated Hitchens recovering from mild head trauma.
March 30th, 2008 at 2:18 am
Thank you for your contribution, john. I’m sure you’ve been lonely since the demise of your buddy Doug Collins.
There’s a good on-going discussion over at my place. I’ll be posting something shortly about copyright law, thanks to a friend on the conservative side of the spectrum who pointed me to a couple of meaty articles in law journals.
I think the discussion should go beyond copyright, though. What do people make of Ezra Levant’s latest attempt to squelch speech that he doesn’t like?
To quote a previous article of mine,
The column can be read by following the link here, and the letter may easily be found by Googling “Dust My Broom” and “Merle Terlesky.” (I hate having to dick around like this, but I don’t want to be sued myself.)
To his credit, Darcey over at Dust My Broom was able to see the inconsistency, even if some people here are unable to.
March 30th, 2008 at 3:37 am
Yes my bad Sean I should have referred to Trademark not copywright.
March 30th, 2008 at 4:25 am
The issue is trademark protection, not copyright. If you aren’t shown to be protecting your trademarks when they’re infringed, you can lose them under law. CanWest doesn’t really have a choice in this matter if they don’t want to lose their valuable brand they’ve invested so much in.”
Then why are they pursuing litigation against someone who mere;y distributed a few copies of the plagiarized trade mark (for no profit) instead of the printer that made the trade infringement? The guy they have in the action is a well known anti-zionist Jew but not the printer of the plagiarized material…is this coincidence?
March 30th, 2008 at 8:34 am
oops sorry dr dawg….yer right…me and doug being buds means we’re both stupid of course…poor stupid doug collins…poor stupid me…STUPID !...love the word..it’s SO unanglosaxon i reckon…which YOU should rejoice upon…
anyway dawg…aside from your condescending tone i can dig your act except for your obtuseness(stupidity dude)which reminds me of the concert for bangladesh for some reason…
cue the sitar miss copps…
love IS all we need eh?
March 30th, 2008 at 9:36 am
“Then why are they pursuing litigation against someone who mere;y distributed a few copies of the plagiarized trade mark (for no profit) instead of the printer that made the trade infringement?”
From my weak understanding of the law, they should be pursuing both.
March 30th, 2008 at 9:42 am
Sean, you are right but they are unlikely to win against either. The question in a trademark claim is usually whether a person is “passing off” their goods as having been made by the trademark owner. A one time publication with a clear parodic intent is more than a little unlikely to be seen by a court as passing off.
I suspect it is open to Canwest, having filed the lawsuit, to drop it as they have made their trademark point. Though I suspect they will let it run as they probably don’t like Mordecai Briemberg and this is a stick to beat him with.
March 30th, 2008 at 4:28 pm
I suspect it is open to Canwest, having filed the lawsuit, to drop it as they have made their trademark point. Though I suspect they will let it run as they probably don’t like Mordecai Briemberg and this is a stick to beat him with.
My point exactly, Jay. Do we see a glimmer of a light here? “A stick to beat him with.” So much for freedom of expression.
Incidentally, while I know the difference between a trademark and copyright, we’re really talking about the remedies sought, which, as at least one commenter at my place has pointed out, are more in tune with a libel action. And, copyright or trademark, one is dealing with an absolute, overreaching claim under current legislation. The distinction is blurred—see Michelin and Cie. v. CAW-Canada, which will be addressed in an upcoming post.
We both recognize that Canwest is using the law as a bludgeon. But, oddly, you continue to see nothing wrong with it.
March 31st, 2008 at 7:42 pm
But Dr. Dawg (?)
you have not objected to the HRC pursuit of Steyn, have you?
You think it’s all right for the state to censor, but it’s an absolute outrage if a private corporation seeks to “censor” someone?
April 23rd, 2008 at 5:09 am
Only in Canada can you see the words “free speech warrior” or “free expression crudader” used as an insult by people that think the government should fund their movies so they can make films about whatever the wish to express.
Weird.