This site is not intended to provide legal advice, should not be relied upon, and may be inaccurate.

The legality of downloading and peer to peer file sharing is not widely published or known. My own attempt to learn more on this issue leads to be believe:

1. Downloading music for personal use is currently lawful in Canada.

2. Downloading other media, including video or software is unlawful in Canada.

3. Distributing or authorizing the reproduction of music or any other media is unlawful in Canada.

4. Proposed changes to the Copyright Act or new decisions could change these conclusions at any time.

Guidance on the issue is provided by statute and case law.

The most recent decision on the matter appears to be BMG Canada Inc. v. John Doe (F.C.), 2004 FC 488.

In the decision, von Finckenstein J writes,

Copyright law is a creature of statute and it does not assist the interpretive analysis to import tort concepts. Under Act, subsection 80(1), the downloading of a song for a person’s private use does not constitute infringement. There was here no evidence that the alleged infringers either distributed or authorized the reproduction of sound recordings. All they did was place personal copies into shared directories accessible by other computer users. The judgment of the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada is authority for the proposition that the provision of facilities that allow copying does not amount to authorizing infringement. How is what was done here different from a library placing a photocopier in a room full of copyrighted material? In either case the element of authorization is missing. McLachlin C.J. wrote in her CCH opinion that courts “should presume that a person who authorizes an activity does not only so far as it is in accordance with the law”.

More information and up-to-date developments can be found on the federal government’s Copyright Policy Branch website.

[footnotes removed]

While the purpose of The Future of Coal report is to examine the role of coal under carbon emissions restraints, it also offers analysis of China’s energy sector.

Issued on March 14, 2007, The Future of Coal: An Interdisciplinary MIT Study is part of a series of Massachusetts Institute of Technology (MIT) reports on meeting energy demand without increasing greenhouse gas emissions. Research in China, from 2002 to 2005, included interviews with government officials, academics and commercial experts, as well as power plant case-studies. Shell provided partial support for the research in China.

    Summary

The report provides research on a number of energy issues in China including: coal production and consumption; carbon sequestration projects; environmental regulation and energy efficiency targets; government and corporate oversight; natural gas and nuclear power trends; and the agglomeration of interests that affect the sector

    Coal

Globally, coal is an abundant and relatively inexpensive power source, costing $1-2 per million British thermal units (Btu) compared to $6-12 per million for natural gas and oil. China has immense coal reserves. The low cost and security of supply are significant incentives for the continued use of coal power in China.

China produced 2.23 billion tonnes of coal in 2005. The second largest producer, the United States, had an output of 1.13 billion tonnes.Virtually all of China’s production is consumed domestically and demand is expanding rapidly. Eighty percent of electricity generation in the country is coal-fired.

It is estimated that over the next 25 years, China will be responsible for more than half of the global growth in coal supply and demand. Every week, China constructs the equivalent of two, 500 megawatt, coal-fired power plants and a capacity comparable to the entire power grid of Great Britain each year.

    Carbon Sequestration

Carbon sequestration is the process of removing carbon dioxide from the atmosphere including the capture and artificial storage of CO2. The report lists a number of active sequestration projects in China including: an enhanced oil recovery program by the Research Institute of Petroleum Exploration & Development (RIPED) division of China National Petroleum Corporation (CNPC), a Shell pilot project, a Dow Chemical project, and a Canadian-Chinese enhanced coal bed methane recovery (ECBM) project in the Quinshui basin.The report notes China has been forecasted as the world’s largest CO2 emitter by 2030 and may expand sequestration efforts as a result.

    Environmental Regulation

The State Environmental Protection Agency (SEPA) is responsible for national environmental policy. Local agents are appointed by regional officials focused on local economic growth and environmental bureaus are funded in part by local fees.

National sulfur emissions are capped by 1998 and 2000 amendments to the Law on the Prevention and Control of Atmospheric Pollution and require coal plants to employ desulfurization systems. However, only a fraction of coal-fired plants have these systems in place.

    Energy Efficiency

The Chinese government recently announced a target of increasing energy efficiency by 20 percent over the next five years.This is likely a central government response to concerns over China’s increasing energy demands and dependencies.

    Energy Sector Oversight

According to the report, China’s national energy bureaucracy is “highly fragmented and poorly coordinated,” with limited control over infrastructure planning, pricing, and state enterprise oversight. The national oil and power companies, that comprise the state enterprises in the sector, shape related regulation and events. Stakeholders of these organizations include: state-appointed executives, domestic and foreign board members, domestic and foreign shareholders, and global financiers. Corporate governance and policy is also disjointed.

Physical and technological infrastructure issues are generally resolved by sub-state stakeholders. The combination of ad hoc energy-related decisions made by local industrial and government actors, and based on local economic concerns, direct the energy sector as a whole. China does not have a coherent national energy strategy. 

Officially, the Chinese government exerts control over the five major state-owned national energy corporations who operate domestic power plants. Under this model, new plants receive central government approval from the Energy Bureau of the National Development and Reform Commission and are built to standards on technology, fuel, operations and emissions.

In fact, a quarter of the generating capacity in place in early 2005 was built without Energy Bureau approval. The financing, service terms, and construction standards of these plants are not centrally recorded. Within the corporations, subsidiary plants report performance and submit earnings to parent companies, but operate at arms-length and in some cases, off-the-books.

Plants are financed primarily by the municipal branches of state-owned banks and municipally-owned development corporations. Local government involvement and investment encourages plant production regardless of standards and central approval. For example, local firms and officials will divide the capacity of a single plant into multiple filings to avoid central government oversight.

    Enterprise Generation

The generation of electricity by individual manufacturers accounts for an estimated ten percent of national consumption. Diesel-fired generators are predominantly used. China is now the largest market for these generators.Fuel is expensive and often produced from imported crude, but enterprises are choosing in large numbers to generate their own power. Increasing global production demands and power-intensive manufacturing processes are two reasons for this trend.

    Source Selection

China’s vast energy demands and decentralized energy governance results in the use of multiple energy sources. Non-coal fossil fuels dominate global supply and China plans to build more nuclear power plants in the next 15 years than any other country (to account for four percent of national generating capacity). Strategic costs and benefits emerge from the use of each source. Coal avoids global oil and gas markets, but has a greater environmental impact. Coastal consumers have expressed preference for cleaner solutions. In addition, Chinese coal reserves are largely located inland while coastal regions consume the most energy, separating local economic interests. Nevertheless, coal will continue to be the dominate source of generation.

A trend among wealthier coastal regions is investment in the infrastructure and use of liquefied natural gas (LNG). State energy companies and local governments share an interest in global trade that utilizes oil and gas port facilities, terminals, and pipelines. These investments allow for, but are dependent on, the acquisition of oil and gas.

    Influence

The report suggests the group with the largest influence over the energy sector as a whole is executing commercial strategies at the fastest rate. This group is comprised of the state petroleum corporations, state power companies and coastal government decision-makers, all participating in the supply of petroleum and gas. Their speed derives from: commercial sophistication; links to global partners; and access to global supplies, government infrastructure, and consumers. The group has no incentive to pursue large-scale coal projects. State petroleum firms view coal as a commercial substitute and competitor; energy companies are cautious to hand over control to the mining industry; and local government actors have few coal constituents.

The dominance of local government control over energy decisions means coastal actors, with substantial investment resources, can opt for dependence on foreign oil and gas over domestic but distant coal. Illustrating this point, Shanghai is expanding its LNG infrastructure while banning new coal-fired plants.

    Conclusion

China’s increasing global economic integration blurs boundaries between state and non-state, public and private, foreign and domestic. State energy companies are listed on exchanges, have foreign corporate directors and are guided by international finance.

The report only makes one China-specific finding. It purports that China lacks the ability to immediately or effectively adopt and enforce a significant carbon emission reduction policy. However, analysis within the report suggests participation in corporate energy strategy and representation in energy transactions affect sector developments as a whole. 

This site is not intended to provide legal advice, should not be relied upon, and may not be accurate. 

Any private poker game in which a portion of the prize is withheld is illegal in Canada.

Section 201 of the Criminal Code:

201. (1) Every one who keeps a common gaming house or common betting house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Person found in or owner permitting use

(2) Every one who
(a) is found, without lawful excuse, in a common gaming house or common betting house, or

(b) as owner, landlord, lessor, tenant, occupier or agent, knowingly permits a place to be let or used for the purposes of a common gaming house or common betting house,

is guilty of an offence punishable on summary conviction.

Section 197 of the Criminal Code defines:

“common betting house” means a place that is opened, kept or used for the purpose of

(a) enabling, encouraging or assisting persons who resort thereto to bet between themselves or with the keeper, or

(b) enabling any person to receive, record, register, transmit or pay bets or to announce the results of betting;

“common gaming house” means a place that is

(a) kept for gain to which persons resort for the purpose of playing games, or

(b) kept or used for the purpose of playing games

(i) in which a bank is kept by one or more but not all of the players,

(ii) in which all or any portion of the bets on or proceeds from a game is paid, directly or indirectly, to the keeper of the place,

(iii) in which, directly or indirectly, a fee is charged to or paid by the players for the privilege of playing or participating in a game or using gaming equipment, or

(iv) in which the chances of winning are not equally favourable to all persons who play the game, including the person, if any, who conducts the game;

Exception

(2) A place is not a common gaming house within the meaning of paragraph (a) or subparagraph (b)(ii) or (iii) of the definition “common gaming house” in subsection (1) while it is occupied and used by an incorporated genuine social club or branch thereof, if
(a) the whole or any portion of the bets on or proceeds from games played therein is not directly or indirectly paid to the keeper thereof; and

(b) no fee is charged to persons for the right or privilege of participating in the games played therein other than under the authority of and in accordance with the terms of a licence issued by the Attorney General of the province in which the place is situated or by such other person or authority in the province as may be specified by the Attorney General thereof.

Purchasing real estate in another country can be very complicated and transactions should be guided by local professionals. Understanding some of the legal requirements can make the process easier. Here are some of the things to be aware of:

The People’s Republic of China practices socialist public ownership of land. (Update: property law in China is changing with a new law in the 2007 session of the National People’s Congress (NPC) opening the door for private property protection. I plan to study and write on this issue in the coming months. )No units or individuals may transfer land, through buying, selling or other illegal means. Leases, however, may be acquired with average commercial terms of 40 years, industrial terms of 50 years, and residential terms of 70 years. Foreigners can only lease residences for personal use with a residency requirement of a year. Property can be sub-leased to tenants on less restrictive terms.

Considerations for transactions:

Status: Verify that property is eligible for transfer. Check for existing mortgages, previous confiscation and limiting conditions.

Offer: The Purchaser Regulation Manual requires developer and agent sign the offer.

Deposit: Cash is the required method of payment. A receipt should be given and stored.

Contract: All parties must be present for the negotiation of terms and signing of the contract according to the Purchaser Regulation Manual. Taxes are paid at that time.

Mortgage: A mortgage requires a Bank Mortgage Agreement with a property assessment for existing properties. The applicant agrees to meet the lending conditions and the application documents and agreement is signed with all parties present. Taxes are paid at that time. The mortgage agreement is notarized.

Approval: The contract should be submitted to the Ministry of Land Management for approval. The mortgage is registered with the Ministry of Land Management.

Transfer: Title is transferred and registered.

Professor Ian Lee of the University of Toronto Faculty of Law has written an interesting article on the income trust tax changes. He argues that both the tax avoidance and lost capital investment fears are overstated.

I wrote about the favourable tax treatment of income trusts here. Last night, the government announced plans to phase out that tax benefit over four years. Income trust structures will no longer be exempt from corporate taxes. To sugar coat the annoucement, the government announced that it would allow senior couples to pool pension income and the corporate tax rate will be lowered slightly.

Income trust have been the hot market structure over the last few years with many companies forming trusts both in order to avoid corporate taxes and to cash in on the market preference for the vehicle. I wrote that this preference decreases capital investment in favour of payouts to unit holders.

 Market reaction has been swift this morning and this could be a tremendous shorting opportunity. I wonder if this change will result in less work for investment bankers in Canada? Income trusts may go from the darling of the Canadian markets to a drag.

Here are more details on the reasoning behind the decision. All the concerns I wrote about: tax losses, decreases in capital investment, and the spread of the structure to companies that did not suit it were behind the decision.

The Unlawful Internet Gambling Enforcement Act attached to the Safe Ports Act (HR 4954) is set to block internet gambling in the U.S. by taking out the middlemen. After the president signs the bill, the federal government will have 270 days to put in measures to stop money transfers to gambling sites.

The responsibility to stop these transfers will fall upon banks and credit cards with threat of legal consequences. Measures already in place will be expanded. Visa already limits transactions to gambling sites by classifying such business under a particular merchant code, 7995. An identifier like this will be carefully expanded and adopted by other financial institutions. By careful, I mean the institutions will err on the side of blocking potentially unrelated transaction rather than the other way around.

Enforcement is excused for paper transactions like checks due to impracticality. Currently, banks do not identify the source of checks when deposited for a number of reasons including privacy, but most importantly: implementation costs. Banks have no reason to spend the potentially huge costs to identify check sources.

Compliance from money transfer sites that move money between gamblers’ credit cards and bank accounts and gambling sites is questionable. Because many such sites are based outside of the U.S., they are not subject to regulatory bodies like the Federal Reserve Board and Federal Trade Commission. Instead, the Act allows the government to block the sites from conducting business using restraining orders and injunctions awarded through court actions. However, it is unlikely such transfer sites would participate or make themselves available to such an action. (Here is Neteller’s October 2nd press release on the matter.)

Enter the techies.The only way this bill will work is to block access to the sites, to police the internet. Internet providers will be asked to block sites and links to such sites. State or federal enforcement officials will have act as gatekeepers, likely providing a list of sites to be blocked to internet providers.

If a provider fails to block the sites, the provider can be subject to court remedies. One catch is that the blocked site must “reside on a computer server that such service controls or operates.” Again, this seems to limit enforcement to domestic businesses. Foreign providers and independent servers would be untouchable.

Domestic search engines will have to censor the links to gambling sites. If people are annoyed that companies like Google and Yahoo comply with the heavy-handed search limitations of China, it will be interesting to see how they react when the U.S. government, by way of court order, tells Google it can not list Party Poker et al.

For more detailed analysis, check out this article by I. Nelson Rose.

Update: According to a October 19 press release from Neteller, “Neteller, a company registered outside the US, will comply with the Act and its related regulations as if it were subject to the Act’s jurisdiction.”

Update: Neteller executives have been prosecuted by the U.S. government and U.S. customers have had funds frozen. The company says funds will be released this summer (2007).

The Safe Port Act which passed the US Senate on Saturday includes provisions meant to cease online gambling in the US. Once signed by the President, it will be against the law for banks to fund Internet gambling sites, as well as the services, like Neteller, Firepay and Click2Pay that transfer funds from banks to offshore gambling sites and back. It also prohibits the use of credit cards for funding Internet gambling accounts.

This may be the coup de grace internet poker sites and poker players as US customers make up the majority of most gaming sites. Partygaming, the company behind Party Poker, estimates 75% of its revenue comes from US customers. The bill came as a surprise to many industry watchers when the Unlawful Internet Gambling Enforcement Act was attached to an unrelated bill aimed at improving port security.

The immediate effect was a sharp sell-off and price decline of online gaming stocks. Shares in Partygaming were down 58% at close of trading on Monday, while shares in 888 Holdings tumbled by 26%. Sportingbet shares dropped by 64% while Empire Online shares slid by 25%. Cryptologic hit a new 52-week low. The bill likely violates national treatment obligations under the WTO and will likely cause a member state like Gibraltor to file a complaint just as Antigua challenged the United States on the Wire Wager Act (see United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services).

This site is not intended to provide legal advice, should not be relied upon, and may not be accurate.  

Slander is an oral statement of defamation that causes economic harm. However, slander per se does not require economic harm. The grounds of slander per se include: statements imputing the chastity of a women, statements that a person suffers from a loathsome disease such as leprosy or sexually transmitted diseases, and in New York statements imputing homosexuality. Outdated? I think so.

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This site is not intended to provide legal advice, should not be relied upon, and may not be accurate.  

Finder’s keepers, losers weepers?

That’s true in NY, but with some limitations. This NY statute sets out the obligations of a finder. If you find something valued at $20 or less, you must make a reasonable effort to locate the owner. If after one year, the owner has not been found, you may keep the item.

If the found item is worth more than $20, the item must be turned over to the police. The police hold the item for a period dependant on the item’s value and ranging from three months to three years (for items worth over $5000). If the owner is not found, the finder keeps the item.

Failure to meet this obligation makes the finder guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one hundred dollars or imprisonment not exceeding six months or both.

How many people do you think follow this law?

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