Tom Jarmyn

$500 fine for illegal file downloads

This story in todays Nat Post suggests that the government is going to totally cave-in to industry demands on the copyright issue. When I purchase a CD I am purchasing the right to listen to that music. The idea that I will only be able to listen to the music on the CD when I am sitting in my family room (competing with the clatter coming from the XBox) is ridiculous. The government is going to facilitate industry requiring me to buy a copy of each piece of music that I want to listen to for each device that I have.

We already pay copying levies, businesses are required to pay levies based upon entirely notional audience calculations every time they play a song and the industry already receives subsidies. I am all for requiring people to pay for music but the idea that the government is going to legally enshrine the recording industry's ability to restrict my usage is beyond the pale.

The fact that they are going to make this an offence means that the government is opening the door to the industry engaging in private prosecutions, investigations and other remedies to pursue individuals who have legitimately purchased music and or movies. It will also open the door to civil proceedings and take down remedies based upon spurious allegations of copying or sharing.

We have seen these industrial remedy proceedings on other fronts. Companies set up collection centres where they send out pro forma demands for payment and threaten legal action if their demands are not met (see here and Electronic Frontier Foundation release from July 6, 2007). In the face of this people often decide to pay, some, like Mrs. Leadbetter have fought back. Is this something we really want to promote.

If the government wants to pass a law that makes file-sharing a crime then go ahead and do so - but the activities in question are not file sharing and are legitimate uses of lawfully purchased property.

BCE Merger

Not much detail here but this story in the Globe and Mail is an indication of the efforts that the BCE Board of Directors went to in order to ensure it was acting in the interests of shareholders.

The Black Case

Interesting to see fiduciary duties play out here. While there are many different aspects to this case one cannot help but think that the problems of the lawyers that were involved in this file (the defendants and the Hollinger lawyers at Torys) stem from the fact that they forgot that their client was the corporation and that it was not the individual sitting across the table from them.  It is sometimes very difficult to remember that the person who hired you, approves your bills and can terminate your retainer is not the person whose interest you are supposed to look out for.

Lawyers referring business to outside advisors

The New Jersey Advisory Committee on Professional Ethics has rendered an opinion that says lawyers can refer business to outside investment advisors and receive a commission on that referral.  They can then also do the legal work that may result from the advice that was given by the advisor.  The lawyer could also have an interest in the financial services business to whom the referral was made.  There some clear limits on the transaction ("Such deals are permitted if the terms are fair and reasonable and agreed to in writing, and the client is advised in writing of the desirability of seeking independent legal counsel").

Conflict of interest law is dominated by rulings related to the legal profession primarily because there are a large number of lawyers who are in fiduciary relationships with clients that usually arise in the most difficult situations.  There has also been a growing pressure to balance the financial pressures of the legal business against the needs and circumstances of individual clients

The situation where a lawyer is profiting off of the advice that he is giving to a client (in addition to his normal hourly rate) gives me some unease.  Even if it is disclosed the fact that the lawyer has increased profit by the fact that service provider X rather than Y provides the advice is questionable.  How do we guard against the impression that the choice of X was not influenced by the fee paid to the lawyer rather than what is the best value for the client?

This is a decision that will be reviewed by the NJ Supreme Court and it will be interesting to see what their conclusion is.

Conflict of Interest Act (Canada)

The Conflict of Interest Act (Canada) comes into force today. Mary Dawson, Q.C. has been named as the Ethics Commissioner responsible for administration of the Act.

BCE sale

It will be interesting to watch this play out over the next few weeks.  A number of observers have wondered whether the Board of BCE was acting diligently to get the best price for shareholders and whether BCE Executives were exercising too much influence over the process.  It is not unreasonable to suggest that if Telus had been a successful bidder a number of the members of BCE's upper management woudl have been shown the door.  The role of the Board Committee supervising the bid process is to ensure that external interests are not influencing the conduct of the auction and the assessment of the bids.  If Telus makes another run at BCE it will be interesting to watch the debate over this process.

With a reported $800 million break fee my guess is that some lawyers are going to do very well out of the ensuing dispute over the conduct of this auction.