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Comment Re:entitled to a refund? (Score 3, Informative) 469

In a consumer contract of unequal bargaining power, the stronger party to the contract cannot deny to the weaker party the whole of the benefits under the contract and then rely upon a limitation or exclusion clause in the contract to justify that breach and denial of the very benefits to the other party which goes to the root of the contract.

In the old days, we called this a fundamental breach (Suisse Atlantique) . Now, we just call it a breach, followed by a refusal to apply the exclusion clause for reasons of unconscionability in a consumer contractual setting (Tercon Contractors v. B.C.; Hunter v. Syncrude).

Either way, EA's conduct as described in the article appears to me to be, beyond much doubt, plainly unlawful -- and the suggestion it is "legal" because of a provision in a EULA that they could never rely upon in court is wholly misguided.

This is an academic discussion unless and until somebody was to sue EA over a matter like this, but to excuse the conduct of a bully by suggesting it is "legal" is both morally -- and legally -- wrong.

End result: a software company cannot fundamentally breach a contract and then rely upon the terms of the EULA to get them off the hook and avoid a claim for rescission of the contract. The law doesn't work that way. Not for huge transportation companies with a global reach, not for monstrously large insurers upon which all modern commerce depends, and not for a comparatively small, "chump change", consumer products corporation like EA, either.

Comment Nice. Too bad nobody makes PC Games anymore... (Score 1) 132

Without putting too fine a point on it, hardware like this used to be pretty cool. I have had several GTX 260 and a Asus 4870 for the past 1.5 years. I've even got two M1710 laptops with SLI. Truth is, I've yet to really flex the muscles on *any* of this hardware since I've owned it.

There just aren't many Triple-A PC titles being made these days; let alone any that benefit much from hardware like this.

It would be very cool if there *were* such titles. But there aren't. Worse, there are not many coming into focus on the horizon, either. I suppose we can all hope the system requirements and eye candy in Star Wars: The Old Republic and in Diablo III will shine with this hardware.

But I wouldn't bet on it. So we buy one of these to play the Witcher II? Then what?

Hardware like this is a solution looking for a problem. And that IS the problem.

Comment Starlost for the Win (Score 1) 922

Series prime for a reboot?

#1 Starlost: A crappy Canadian 70's Saturday morning kids SF show. Based on a Harlan Ellison story/script. There is a lot to work with here. This could work very well.

For those unfamiliar with the original - there is a generation ship out of control headed owards a star. The ship is a massive nework of geodesic domes. Each dome is essentially its own culture. The series' heroes are looking for the bridge and a way of saving the ship. Most dome/cultures are oblivious and do not even realize they are on a ship in the first place.

#2 Logan's Run: Another novel turned into a 70s movie that spawned a short lived series that could work. I do think it would work better as a one-off movie, however.

#3 Micronauts: The toys were cheesey but the original comic series #1 by Marvel had huge potential. This could work very well.

Comment Re:"Hate" speech is Free Speech (Score 2, Interesting) 651

"Laws won't fix it either"

I disagree. So does Parliament and so does the Supreme Court of Canada. As for the CHRC, that tribunal has no expoectation of judicial deference on appeal when it is interpreting the Charter.

This is Canada. It's *not* the USA. We do not have absolute rights here when it comes to freedom of expression. Those rights are tempered by the reality that such expression can bring about great social harm. The right to freedom of expression can be infringed if is necessary to serve the goals of a multicultural, free and democratic society.

Warman is not my favorite litigant. I disapprove of some of his tactics.

That said - and I *am* a Canadian lawyer - I do not think this decision will survive an appeal. The fact that Canada's "hate speech" appear to violate s.2(b) of the Charter has never been in doubt; but the law that infringes those rights will be saved by Section 1 of the Charter, just the same.

S. 1 "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Section 1 will have its day - and it will ultimately prevail.

Comment Re:Might sound nuts, but has a sound legal basis (Score 1) 251

Soundmarks are not new and they are entirely reasonable - and properly protected as IP. The fact that they rarely are is more a consequence that the development of real goodwill in a soundmark is an expensive proposition, in terms of the cost of media buys. So it's not pursued, generally. But there are exceptions to the rule.

Note: a soundmark must be a brief sequence of notes or other recognizable and describable sound. You can't soundmark a whole song or even a decent portion thereof. That's copyright - not trademark law.

The NBC chimes are instantly recognizable. The five note sequence Intel plays in their ads? Same thing. You want to use that sound to go sell pantyhose - go to town. You want to use it when your name is AMD and you're selling processors? Better call your lawyers and head for the bomb shelter in the basement.

These small combinations of notes are marketed in a manner so as to be synonymous with the product and the product manufacturer. It is the creation of goodwill associated with a brand, out of thin air, at significant expense. And the successful ones are very successful. Those owners have a legitimate right to protect their investment.

Like all trademarks, they are not an absolute bar to the use of the phrase, pattern, logo - or in this case - the sound. A trademark is associated with well defined wares and/or services. It's not like every time we use the word "life", we have to see if Time Warner is going to let us do so if we send them a cheque. But if we are going to make it the title of a magazine? Nope. No can do. That's dirty pool.

Selling coal to a generating station? Coke is not a expecting a cheque every time someone mentions your product's name. Same deal when a pharmaceutical giant is selling its legal cocaine for use in pharmaceuticals. But if you are selling soft drinks? Entirely different story. That's what trademarks are for. And if you try and market your product with a red and white swirlish pattern selling soft drinks - Coca-Cola is going to stomp on you until you surrender. And so they should.

In this case, a competing tour operator, offering *exactly* the same narrowly focused service, pitched at *exactly* the same customers, tried to use a soundmark protected by their competitor. And that's not okay. And no, it's not like suing someone for a million over a spilled coffee, either.

This is about protecting entirely legitimate business expectations. You guys need to grow up a little.

Comment Re:Um, what? (Score 1) 492

Yes it is that.

This has gone viral FAR beyond the traditional boundaries of Rap, Hip Hop or synth. And it's done so at the speed of light. The inclusion of Youtube intersecting witha generation of ears that are now trained to hear and like low bit-rate samples is not a small thing. it's everything. The piece de resistance; lightning in a bottle.

So yeah. This absolutely is "the new thing". If you were wondering what the Next Big Thing is going to be? This is IT.

I am no good at finding IT. I am no good at making IT. I am no good at predicting what kind if it, IT might prove to be.

But I know IT when I see IT. And this is IT.

Comment Re:Yes more like TOS - W/ Kirk putting his boots A (Score 1) 444

I would die willingly for a leader like Jean Luc Picard. The difference is, J.T.Kirk would make sure I would die for him without ever getting much of a choice as to - whether I wanted to or not.

I loved Kirk growing up, but Picard managed to be a hero and role model when I was already an adult and thought myself past such things.

Whatever the case, give me Klingons off the starboard bow amd Romulans, Gorn and Tholians please.

No Suliban, No Xindi, No god damned lame Kazon. Keep you damn Bajorans and Cardassians too.

Klingons. Disruptors. Cloaking devices! Photon Torpedoes!!

Shields up! Red ALERT!!

Lock phasers and fire!!


Comment Re:The other option (Score 1) 293

While I am sure that adding Canada to the USA would fulfill the longheld dreams of the 54-40 or fight lobby, I pretty sure the Republicans would prefer a second Civil War before they would let Canada become a part of the USA.

Seeing as the addition of 36 million people and seven or so states to the Senate which would vote Democrat as a block for the next 100 years would permanently shift the balance of power in Washington and make the Republicans the party of irrelevant and perpetual opposition, my guess is that those who are prone to military expansion in the USA might think long and very hard before annexing 30 million voters who believe in evolution, think evangelical Christianity is a joke and aren't scared by the word "socialism". Worse, a majority of 'em think gay marriage is no big frikkin deal and would say so - loudly and repatedly and without shame, whenever asked. (And even when they aren't asked, too.)

They'll rejoice in the Northeast and Pacific Norhwest. They'll chisel statues and plan parade routes in Vermont, I'm sure. But how about, say, Oklahoma, Idaho, Texas and Utah? I'm guessing the Canadian Invasion and Annexation War Plan is going to be a REAL tough sell in those parts of the USA.

We're most definitely NOT the droids they are looking for. :)

Comment Re:Tax digital downloads and mail order products? (Score 0) 293

The Civil War was over economics now? Revisionist history, indeed.

It was about slavery. It was *always* about slavery. Absent that key factor, there would have been no secession and no Civil War.

Marxist analysis of historical conflicts on an macro-economic level is usually a helpful analytical tool. But it's *just a tool*. It does not explain cause and effect - and it rarely explains passions and hatreds that lead to civil war.

Charles and Mary Beard got it wrong.

Comment Re:Tax digital downloads and mail order products? (Score 1) 293

Your understanding is incorrect. PST is technically required in all case to be remitted by the taxpayer. That's the theory. It rarely is. Collection of PST is enforced, however, by CCRA if the purchase crosses the US/Canadian border. It is otherwise on a corss-provincial sale if the product must be registered (i.e., a car).

The liability to pay PAT depends upon the residency of the purchaser - not where it is bought. It is a consumption tax. If it is consumed here, it is to be paid here.

Comment Re:Tax digital downloads and amil order products? (Score 1) 293

If you think an American State government has more power than a Provincial government in the massively decentralized Canadian constitutional system, then to be blunt: you don't have a **clue** what you are talking about, Mr. Canuck.

We traded off multiple coexisting criminal powers at the federal and provinicial levels as just being bad public policy. Instead, we gave provinces exclusive jurisdiction over "Property and civil rights". Money and the regulation of commerce and contracts is where the power is in an industrial economy. The power is not in deciding what's porn and what isn't, my misguided friend.

Moreover, our courts (to be fair, the Privy Council in the U.K., but nevermind that) also downplayed the Canadian federal power that comes with managing interprovincial trade, whereas the American constitutional powers went essentially nuts justifiying every new Federal department and regulatory authority with reference to insterstate trade regulation in America's constitution (and that little matter of the Civil War certainly didn't hurt a sharp realingment in fafor of the Federal constitutional authority in the USA, either).

Anyways - you are not simply a little wrong; you are DEAD wrong.

Comment Re:Tax digital downloads and amil order products? (Score 4, Insightful) 293

Last I checked, we've spent $15,000,000,000.00 on a war in Afghanistan and lost a couple hundred Canadian soldier's **lives** there fighting a war because of some nutbars who attacked AMERICA. They attacked you - not us. Mainly because of shit you do and have done - and NOT because of some shit we do and have done.

We fairly clear on that part?

Still, given the audacity of the motherfuckers in attacking our closest allies and best friends, spending all that blood and treasure to assist America in kicking their asses was the least we could do for our best friends. And unlike most of the the Western Europeans, we actually put our guys in harm's way in Afghanistan. Our troops are there to fight. Not to be stationed in a base with orders not to fight and just fly a flag and call it "helping".

We fairly clear on that part too?

Still, that's the least Canada could do, given 9/11.

The least you could do, otoh, might be to maybe acknowledge that and say thank you (and sorry for making the war unwinnable and your sacrifice meaningless with that second front in Iraq thing. Real sorry about that guys.)

Just sayin'.

Comment Re:Tax digital downloads and amil order products? (Score 2, Insightful) 293

I well understand the overall complexities of monetary policy. Spending money you do not have means borrowing it. You didn't have it, now you borrowed it. There. No you have it to spend.

We're clear on that part, right?

I'm not talking about pating the mortgage and groceries. Governments don't work that way. But in the end, they entire monetary system still depends upon governments paying it back - and being charged interest in the meanwhile.

At the ned of tha day, when the interest on your debt forms such a great portion of your overall budget that it squeezes out vital programs, you will have no choice but to raise the tax. There is a level of service that people will not accept being cut-off. The bill comes due.

Put another way, the people you borrow the money to fuind the difference between what you collect and what you spend? They want their interest. That's the deal. They'll probably float the pricnipal again, but that only goes so far. Time comes, they want it for other things, too. Like, say, buying stuff for themselves instead of lending it to America. That's the problem about looking to china to fund your deficit (a problem tied to a very undervalued Chinese currency, doubtless) but there it is just the same.

Fiscal and Monetary policy is easy when you owe most of the money to yourselves internally. But America crossed that Rubicon long, long ago. There is a very real price to all of this.

Comment Re:Tax digital downloads and amil order products? (Score 1) 293

"When the shit does finally hit the fan the biggest customer of your cattle, energy, labor, oil and practically everything else Canada produces will vanish. Despite your discipline and rigorous public governance you're still going to be screwed"

This is, regrettably, mostly true. Which is why watching your public policy decisions over the years is something we pay very close attention to in Canada. And it does, in fact, scare the shit out of us.

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