OPCA and Contempt

In R. v. Hardy 2023 BCPC 65 the Supreme Court of British Columbia states 

[1] On September 1, 2022, day one of a scheduled one-and-a-half day trial, I found 46-year-old Cameron Hardy guilty of in facie contempt of court, otherwise known as contempt in the face of the court. 

[2] He is a disciple of "Organized Pseudo-legal Commercial Arguments" (OPCA) theory. As explained by him, he is a freeman. He proclaims that he was created by the creative source. He claims to be a man of mankind, being something other than a human being. Simply put, he says that he is a man, a mankind, not some legal identity on a piece of paper that was created by man and owned by man. Accordingly, in his mind, he is not a person or an individual, and therefore the courts of British Columbia hold no jurisdiction over him. He rejects the name, Cameron Hardy. Instead, he self- identifies by various names, including “A Man Known As Cameron Hardy” and “A Man Commonly Called Cameron Hardy.” For my decision, I will refer to him simply as Hardy. 

[3] Even if I am wrong about Hardy’s legal name or his status as the defendant on the substantive matter, today, I am sentencing the person who was standing in front of the court on September 1, 2022, who committed contempt in the face of the court. 

I. INTRODUCTION 

[4] The courts of British Columbia are legitimate, or they are not. There is no middle ground. There are no shades of grey. Unfortunately for Hardy, the courts of British Columbia, including the Provincial Court of British Columbia, are legitimate. 

[5] British Columbia and Canadian laws apply to Hardy, no matter how he identifies, what words he uses to describe himself, or his political orientation. The criminal law, and the procedures that govern its implementation, are part of the law of British Columbia and Canada and apply to all. Opting out is not an option. 

[6] As a result of his refusal to recognize the legitimacy of the court, heed court orders and directions, and participate in the trial process, Hardy finds himself before the court for sentencing for contempt of court. 

[7] The superior courts and s. 9 of the Criminal Code recognize the authority of a Provincial Court judge to forego the formal trappings of a criminal trial and summarily punish for in facie contempt of court. 

[8] One leading in facie contempt of court case is R. v. B.K., 1995 CanLII 45 (SCC). As set out by Justice Major (in dissent) in B.K., xx 26 I agree with the caution expressed by Lord Denning in Balogh that the power of summary punishment is a great but necessary one that is to be used with scrupulous care. 

[9] In the present case, because of Hardy’s behaviour and flagrant disregard for the directions and order of the court, there existed an urgent and imperative need to utilize the summary contempt procedure on day one of his substantive trial. Specifically, Hardy’s refusal to follow the court's directions and order was deliberate and premeditated, as evidenced by the written script he had in his possession and read to the court. He undertook a calculated and intentional course of action, as he had on previous court occasions, specifically to thwart the court from proceeding with his trial. He maintained his behaviour despite being encouraged to engage legal counsel and being told of his actions' potential consequences. His conduct was contemptuous of the court and the administration of justice. 

II. OPCA ARGUMENTS 

[10] As stated on page 764 in 'Enjoy The Silence: Pseudolaw At The Supreme Court of Canada': Because pseudolaw has no actual validity, OPCA litigants by definition abuse court processes when they advance these ideas. Furthermore, Canadian case law on this subject is now highly developed. Post-Meads, an OPCA litigant is unlikely to enter court, let alone an appeal court, unaware that the ideas he or she intends to argue have been the target of strong court criticism. Nevertheless, some OPCA litigants’ belief in pseudolaw is apparently sincere...Social scientists who have investigated these populations confirm there are true believers in this community who are driven by a combination of conspiratorial and political beliefs, reinforced in a kind of social echo chamber. 

When viewed exclusively from a government and court perspective, pseudolaw is nothing but a waste of state and institutional resources. That perspective misses something important. Pseudolaw leads to self-inflicted injury by those who advance these toxic ideas, including increased litigation damages and costs, criminal sanctions, psychiatric detention, foreclosed homes, and broken families. In a very real sense, OPCA litigants are the victims of the conman gurus who sell supposed secrets to the real but concealed law. Worse, OPCA theories authorize unorthodox and illegal actions against government, police, and court workers, including violence. xx Pseudolaw is a form of legal quackery or snake oil. Much as doctors and scientists are the most effective critics of pseudomedical and pseudoscience frauds, courts are the expert bodies logically and functionally positioned to refute OPCA misconceptions with clear, substantive, and responsive court decisions. 

[11] Whether Hardy is a “true believer” or simply an “opportunist” using OPCA to delay and disrupt the court process, his reliance on the discredited OPCA theory clearly contributed to his contemptuous behaviour on September 1, 2022. And even though no OPCA defence has been successful on its merits – see R. v. Hardy, 2007 BCCA 523 and R. v. Hardy, 2007 BCSC 125, for examples of how an OPCA defendant was successful on appeal because the Crown did not prove identity beyond a reasonable doubt at the trial court stage – the courts are still having to deal on a regular and on- going basis with civil court litigants and criminal defendants who embrace OPCA theory. So, in light of the zero percent chance of success on the merits in the courts, why do people still espouse OPCA theory? 

[12] In 'Overcoming Knowledge Resistance: A Systematic Review of Experimental Studies', the authors state: A well-known fact is that people surprisingly often believe in things that are simply not true. For example, the public stance on climate change in the US has become increasingly contentious (Leshner, 2015; van der Linden, 2015), and many believe that vaccination has negative health effects (Larson et al., 2016). Such unfounded beliefs predict a range of maladaptive perceptions and behaviors, including poor health choices, climate change denial, and decreased civic virtue (Grebe & Narrrass, 2012; Jolley & Douglas, 20l4). 

An obvious question then is why people, in this era of information abundance, hold beliefs that contradict reason and rigorous observation. While there is little doubt that humans are capable of rational thinking, research has made clear that we often don't form our beliefs by a rational weighing of evidence and data. Rather, research shows that our perceptions, interpretations, and beliefs about the world are strongly influenced by our previous beliefs, feelings, and personal motives to view the world in one way rather than the other. Thus, people selectively attend to information consistent with their interests or previous beliefs, interpret neutral information or evidence that counter their attitudes in a belief confirming manner, and distort or selectively remember objective facts in a way that support their attitudes and decisions. Hence our reasoning is often motivated by desires to view the world as we expect or want it to be (for an overview, see Kunda, 1999). While modern people thus in principle have access to more knowledge than ever before, our inherent mode of thinking continues to make us susceptible to erroneous conclusions and false beliefs. This type of motivated reasoning is an important factor behind misconceptions that helps explain knowledge resistance. 

[13] I may never understand the true reason Hardy has acted in the manner he has. Nonetheless, he has relied upon OPCA theory misinformation to delay and disrupt his court proceedings. He relied upon and spread his OPCA disinformation intending to harm or deceive the court and the administration of justice. 

[14] As with the defendant in R. v. Kuleba, 2021 ONSC 1016, Hardy’s stubbornly wrong reliance on the OPCA theory he advanced caused him to reject opportunities provided to him by the court. 

[15] Concerning OPCA theory, I repeat what I said in paragraph 1 of Ruling Re: Organized Pseudo-legal Commercial Arguments, in R. v. Hardy, 2022 BCPC 189, ...I also had the opportunity to reflect upon what has become known in Canada -- and other parts of the world, too -- as pseudo-legal arguments. And one of the interesting things about pseudo-legal arguments, regardless of whether one is of the detaxer or freeman of the land or sovereign citizen ideology/philosophy, is that there has not been a single case in Canada supporting this particular theory. Judges are, by precedent, allowed to look at previous decisions of the court and decisions of a superior court are binding on me. What that means is that superior courts have said that I may and should summarily dismiss these kind of arguments, and by summarily dismiss, that means not waste the taxpayers’ money, the court's time, your time, the prosecutor's time, the court clerk's time, or anyone else’s time, with an argument that has zero chance of success. 

[16] As a Provincial Court judge, I am bound by precedent. I also pay heed to persuasive case law from outside of British Columbia. Cases such as R. v. Trifunski, 2022 BCSC 609, Parhar v. British Columbia (Attorney General), 2021 BCSC 700, R. v. Merrill, 2021 BCSC 1017, R. v. August-Sjodin, 2020 BCSC 826, R. v. Ciciarelli, 2019 ONSC 6719, R. v. Penner, 2018 MBQB 200, R. v. Jacobi, 2017 BCSC 1106, R. v. Petrie, 2012 BCSC 2110, and R. v. Lindsay, 2011 BCCA 99, have considered the issues already. OPCA litigants cannot succeed when relying upon their OPCA theory as legally sound in Canadian courts. The case law makes it clear that the arguments and philosophies being advanced by Hardy have no legal authority and are nonsensical. Accordingly, I refused to re-litigate OPCA claims and engage with Hardy concerning OPCA contentions. 

[17] In the leading case of Meads v. Meads, 2012 ABQB 571, Associate Chief Justice Rooke of the Alberta Court of Queen’s Bench said the following about courts’ responses to OPCA cases:

  [586] Canadian courts have adopted a variety and range of responses to OPCA litigants and litigation. Any judge who faces OPCA litigation should consider deployment of all tools in this arsenal, and others that may be developed for this difficult litigant category. 

[18] I am aware of the debate over whether OPCA-type defendants and litigants are delusional and suffering from a type of mental illness versus being anti-government ideologists, expressing their political philosophies in an unorthodox manner. The temptation is to lean towards believing some OPCA-type defendants and litigants have a form of mental illness when one observes how people like Hardy, confronted with the reality that their position cannot win, still carry on with their OPCA-type contentions and behaviour. 

[19] On pages 1174-5 in 'After The Hammer: Six Years of Meads v. Meads', Donald J. Netolitzky, author and legal researcher, addresses the issue head-on: The Meads OPCA indicia serve another useful role not suggested in that decision. Psychiatric investigation of Freemen and Sovereign Citizens has concluded adherence to pseudolaw conspiracies is an expression of extreme political beliefs, reinforced in small introspective social communities. However, the peculiar formulaic expression of these ideas mimics delusion. That has resulted in misdiagnosis of these persons as mentally ill. OPCA ideas such as the “Strawman” duality have been misidentified as a mental health issue, rather than pseudolaw. Court- ordered psychiatric examinations and detentions may result. The Meads OPCA indicia are therefore a helpful resource to distinguish between persons who litigate because of mental illness versus anti-government ideology expressed in an unorthodox manner. 

[20] I have not ordered a psychiatric assessment for Hardy, finding him intelligent, albeit an anti-government ideologist. He understands the difference between right and wrong. He has merely selected wrong over right. 

[21] Having rejected mental health issues playing a role in Hardy’s disruptive behaviour and reliance on OPCA theory, I next consider how misinformation has contributed to Hardy’s contempt of court. 

[22] OPCA theory falls into the category of misinformation, defined on page 13 in 'The psychological drivers of misinformation belief and its resistance to correction', as “any information that turns out to be false.” Scholarly articles such as 'After The Hammer: Six Years of Meads v. Meads, The psychological drivers of misinformation belief and its resistance to correction and Beyond Misinformation: Understanding and Coping with the “Post-Truth" Era' provide context to the reality that individuals, despite all evidence to the contrary, continue to rely upon misinformation, leading to poor judgement and decision-making. It is the way for OPCA theory proponents. 

[23] It seems that phraseology such as “post-truth" and “fake news" has become increasingly prevalent in public discourse. As a court system, we need to recognize how the growing abundance of misinformation influences people in the political, technological, and societal context, including the courtroom. Regarding OPCA theory proponents, we need to develop a concrete methodology to deal with them once rationale thought and societal norms have been rejected by the OPCA theory proponent. After all, if left unchecked, OPCA theory can and will harm the court system, as evidenced by Hardy’s success at turning what should have been a one to two-day trial into a costly and time-consuming exercise that has morphed into two separate files: the substantive trial file and the contempt of court file. 

[24] In trying to understand Hardy’s rationale for his contempt of court, I appreciate the warning given on pages 13 and 14 in 'The psychological drivers of misinformation belief and its resistance to correction':

The psychology and history of misinformation cannot be fully grasped without taking into account contemporary technology. Misinformation helped bring Roman emperors to power, who used messages on coins as a form of mass communication, and Nazi propaganda heavily relied on the printed press, radio and cinema. Today, misinformation campaigns can leverage digital infrastructure that is unparalleled in its reach. The internet reaches billions of individuals and enables senders to tailor persuasive messages to the specific psychological profiles of individual users. Moreover, social media users’ exposure to information that challenges their worldviews can be limited when communication environments foster confirmation of previous beliefs — so-called echo chambers. Although there is some controversy about echo chambers and their impact on people’s beliefs and behaviours, the internet is an ideal medium for the fast spread of falsehoods at the expense of accurate information. However, the prevalence of misinformation cannot be attributed only to technology: conventional efforts to combat misinformation have also not been as successful as hoped — these include educational efforts that focus on merely conveying factual knowledge and corrective efforts that merely retract misinformation. 

For decades, science communication has relied on an information deficit model when responding to misinformation, focusing on people’s misunderstanding of, or lack of access to, facts. Thus, a thorough and accessible explanation of facts should overcome the impact of misinformation. However, the information deficit model ignores the cognitive, social and affective drivers of attitude formation and truth judgements. For example, some individuals deny the existence of climate change or reject vaccinations despite being aware of a scientific consensus to the contrary. This rejection of science is not the result of mere ignorance but is driven by factors such as conspiratorial mentality, fears, identity expression and motivated reasoning — reasoning driven more by personal or moral values than objective evidence. Thus, to understand the psychology of misinformation and how it might be countered, it is essential to consider the cognitive architecture and social context of individual decision makers. ..... 

Different types of misinformation exist — for example, misinformation that goes against scientific consensus or misinformation that contradicts simple, objectively true facts. Moreover, the term disinformation is often specifically used for the subset of misinformation that is spread intentionally. More research is needed on the extent to which different types of misinformation might be associated with differential psychological impacts and barriers for revision, and to establish the extent to which people infer intentionality and how this might affect their processing of the false information. 

[25] The observations of Justice Graesser in A.V.I. v. M.H.V.B., 2020 ABQB 790, a recent case dealing with a defendant named Robinson who espoused OPCA and "Magna Carta Lawful Rebellion" (MCLR) theory, hold in Hardy’s case:

52 The consequences of contempt are not trivial. In Fearn v Canada Customs, 2014 ABQB 114, and in particular paragraphs 215-256, the Court concluded that gurus who promote OPCA schemes that purportedly defeat legitimate court authority are engaged in criminal contempt of court. 

53 This may appear to be the use of a sledgehammer to crush an ant. I would instead use the analogy of an inoculation to stop a virus. OPCA and MCLR gurus harm people. Ms. Robinson has already harmed MHVB and her family. These gurus teach illusions that will predictably fail. They promise much, but their clientele gets less than nothing. 

54 These schemes are nothing more than cons, led by people who rely and feed on the oft-quoted statement attributed to P.T. Barnum (of circus fame): a sucker is born every minute. That is as true now as it was when spoken more than 150 years ago. The Courts are not suckers. And the Courts will not be intimidated.

[26] Despite having been ordered not to do so, Hardy’s use and reliance upon OPCA theory – combined with his refusal to recognize the court's legitimacy, heed court orders and directions, and participate in the trial process – resulted in Hardy finding himself before the court for sentencing for contempt of court. 

[27] The procedural steps customarily required by natural justice would not have been of any benefit in the situation faced by the court in the present case, as evidenced by Hardy’s refusal to speak to a lawyer or have a lawyer represent him, combined with his reliance on OPCA theory and his disruptive behaviour before, during and after the finding of contempt, until his removal by the sheriffs from the courtroom. With Lord Denning’s warning in mind, the court decided that Hardy’s behaviour on September 1, 2022, demanded immediate action from the court. The court could not allow it to continue. ...

[138] To believe that one is exempt from the law because of how they self-identify and because they espouse OPCA beliefs is not only outrageous but creates great harm to the community as others consider whether a magical “get out of jail free card” exists, and after that stop paying taxes, fail to abide by laws and public health orders, and waste valuable court resources with nonsensical OPCA arguments. ... 

[161] confirm the same principles hold true when sentencing a person for contempt of court related to OPCA misconduct: The words of Justice Tilleman in Fearn v Canada Customs, 2014 ABQB 114, 

[254] The test identified in the appellate case law is that a criminal contempt of court sanction is appropriate when an activity constitutes a "clear and present danger", "real and imminent harm or threat to justice". OPCA gurus sell and promote techniques that damage the court. The judiciary regularly encounters litigants who attempt to apply these techniques. Only a small fraction of those events are documented in reported case law. This is not merely a theoretical issue, but one that is a regular and unwelcome event. 

[255] Thus, though what Mr. Fearn says likely would be preposterous, absurd, and probably offensive to the average Canadian, he is one of a community of like-minded persons. In their eyes Mr. Fearn's "truths" are very real. To permit the business of interfering with court processes to go unchallenged only reinforces this community's misguided, dystopian world perspective. ..... 

[260] Contempt of court is a mechanism to curb OPCA misconduct that is directed to and interferes with court operation and function. This response should be broad and meaningful. That reflects this authority as an expression of the inherent jurisdiction of this Court. That means that while freedom of expression is a value respected and protected both under the common law and the Charter, that right does not extend to speech and communication which is criminal, or is intended to or injures the administration of justice and the rights of justice system participants.

[162] I stress wholeheartedly that Hardy's reliance on OPCA theory was wrong. He attempted to circumvent justice system procedures. His arguments were not merely legally false but often just plain stupid. Hardy’s defence was vexatious and frivolous. He had no hope of success; thus, logically, his only purpose was to frustrate the court and waste government resources.

Shklar

'Arendt Corrections: Judith Shklar’s Critique of Hannah Arendt' by Hannes Bajohr in (2021) 5 Arendt Studies 87–119 comments

 Judith Shklar wrote about Hannah Arendt throughout her career. However, her nuanced readings are often ignored by schol- ars who prefer to depict both philosophers as stark counter-images. In this paper, I offer a more complex comparison on the basis of all of Shklar’s writings about Arendt. Shklar’s critique is grounded in what she sees as the Romantic strand in Arendt’s thought, which she identifies with a metaphysical, elitist, and aestheticizing stance towards politics, a distaste for modernity, and a nostalgia for Greek antiquity. For Shklar, this position comes to the fore both in what she believes to be Arendt’s purely therapeutic notion of revolution as well as the rejection of her own Jewish identity. Nevertheless, Shklar also admired Arendt’s insights about exile and her appreciation of Kant. Through her sustained critique of Arendt, Shklar developed her own conception of a realist, rights-affirming, and anti-metaphysical liberalism. 

Seyla Benhabib once wrote that Judith Shklar read Hannah Arendt “against the grain on so many issues” that the former’s relationship to the latter warrants its own study. This essay is not such a study, which may require a whole book, but it tries to provide a lay of the land. It is mo- tivated not only by Benhabib’s observation but also by my own impression that most any text dealing with Shklar will inevitably turn to a comparison with Arendt. Yet this is rarely to develop Shklar’s reading of Arendt, but rather to construct both thinkers either as biographical twins or as philosophical counter-images. In this essay, I will first demonstrate this tendency by example of Dana Villa’s pitting Shklar against Arendt in the two philosophers’ assessments of a highest evil. Against what I believe is a reductionist reading, I suggest that Shklar was not simply Arendt’s counter-image, but that similarities persist, and that she made alterations and corrections to some of what appeared to her the more egregious of Arendt’s shortcomings. In the second section, I turn to Shklar’s intellectual socialization in the shadow of one of Arendt’s most important concepts, totalitarianism, which Shklar soon began to reject. I discuss Shklar’s first and already fundamental attack on Arendt in her debut After Utopia, where Arendt is grouped with her teachers Heidegger and Jaspers as belonging to an apolitical, snobbish, and aestheticizing “romanticism of defeat.” That Arendt was not very fussy when it came to historical facts but more interested in heroizing the past, Shklar noted more than once; in the fourth section, I look at her critique of Arendt’s moral taste for classical antiquity, and in the fifth at her incomplete and, in Shklar’s eyes, in the end purely therapeutic, but not political, view of revolution. The sixth section is devoted to Shklar’s strong, and at times excessive, reaction to Eichmann in Jerusalem that saw in it a self-renunciation of Jewish identity. I conclude with a look at the last text Shklar wrote on Arendt, a short but relatively conciliatory review of Arendt’s Lectures on Kant’s Political Philosophy.

Identity and Lex Sportiva

'Rules of the Game, Gaming The Rules' by Bruce Baer Arnold in Miroslav Imbrišević (ed), Sport, Law and Philosophy: The Jurisprudence of Sport (Routledge, 2023) comments 

 Competitive sport, just like law, is a matter of identity. The centrality of identity results in rules about who gets to compete and therefore who gets rewarded through medals, public recognition, sponsorship and other benefits. As a consequence it results in imperatives for subverting requirements about identity, for example through changing nationality (something encouraged in some national sports policies), through impersonation (‘ring ins’) and use of prohibited substances to illicitly boost performance contrary to notions of fairness. 

That subversion of requirements in turn results in policing, centred on the verification of identity claims regarding nationality, gender, status as an amateur (‘shamateurism’), age or freedom from substances that have not been used by a competitor’s peers. Policing of subversion, and more broadly the administration of sport, is a matter of authority. That authority is the entitlement to do or demand of others certain things by virtue of the role as a referee, sports administrator or government official. Just as competition can be understood as matter of rules about who has the identity that enables participation as a competitor, the governance of sport is intelligible as rules about who gets to make and implement rules regarding sport. Both are analogous to H.L.A Hart’s conceptualisation of primary and secondary rules (Hart 1994). 

This chapter construes professional and quasi professional sport (such as the national football and basketball leagues, the Olympics, America’s Cup and Tour de France) in terms of rules about identity. It suggests that the creation, subversion and policing of identity in sport through the articulation and implementation of rules results in a jurisprudence that offers insights about sports law per se: what has been characterised as the lex sportiva (Kolev 2012; Beloff 2012). That jurisprudence more broadly offers insights about the nature of identity as an artefact in law, something that can be understood through lenses provided by justice theorists such as John Rawls, Alan Gewirth and Martha Nussbaum rather than merely rules theorists such as H.L.A. Hart, Hans Kelsen and contemporary scholars such as Schauer. 

From an identity perspective the lex sportiva provides a lens for considering the nature of rules in legal systems, including questions of authority in the making, day by day enforcement and contestation of rules. Some judicial decisions in the lex sportiva for example deal with disputes about process, including what is acceptable evidence in a claim that an identity has been subverted through doping or that individuals such as Caster Semenya and Billie Jean King have been improperly allowed to compete contrary to rules restricting participation to people with a specific gender. Some are matters of disputed norms regarding bodies and behaviours, where there may be conflicts between sports law as private rules and state law (Di Giandomenico, this volume). 

Such disputes can be understood in terms of Hart’s emphasis on rules of recognition and adjudication, founded on identity rather than morality (Hart 1994; Hart 1958). They can also be understood in terms of expectations regarding the public and private spheres, with public law potentially reshaping private rules to address concerns relating to safety, discrimination and exploitation by oligopolies. 

The theorists also offer insights about how and why we value ourselves, others and legal frameworks that create/enforce identities. Nussbaum, Rawls and Gewirth offer a jurisprudence that allows us to evaluate rather than merely taxonomise the working of the lex sportiva and the rules of each game (Nussbaum 2006; Nussbaum 2011; Rawls 1971; Rawls 1999; Gewirth 1998). That evaluation emphasises fairness, aspiration and encouragement of flourishing. Their view of justice is antithetical to a ‘winner takes all’ ethic that fosters both the rewards and subversion noted above. The view values participation in sport and achievement of excellence that is not determined by blood substitution, performance enhancement drugs or other mechanisms for cheating. It questions the fairness and thence legitimacy of rule makers that are tainted by corruption or indifferent to harms such as concussion-based injury and sexual abuse by competitors, bringing the rules and the sport into disrepute. It more subtly involves disquiet about rules of a game in which participants in search of rewards accept rules and integrity mechanisms that erode the dignity attributed by liberal democratic states to all humans. 

This chapter begins by characterising identity: a status under a sport’s rules (and more broadly under public law) that is typically signified by identifiers. It then discusses the centrality of identity for sport, including the identity of sportspeople and the identity of the institutions or individuals that make the rules. That discussion is applicable for understanding other fields such as the professions and, more broadly, citizenship as a status that embodies rules regarding reciprocal rights and obligations. It argues that rules regarding identity in professional sport frame the achievement of rewards, including benefits for those who play and those who manage the rules. 

The chapter next examines the subversion of identity and thus subversion of rules regarding identity, for example a competitor gaining an illicit advantage by using a prohibited substance and thereby breaching rules regarding non-use of such substances. Unsurprisingly, where there are rewards and where people may consider that achievement is imperative some people will choose to break such rules and on occasion subvert rules that are meant to detect illicit performance enhancement, for example to defeat substance-detection tests by swapping urine. Legal systems are typically responsive and the administration of rules regarding identity in sport is no exception. The chapter accordingly discusses both rulemaking and practice that seek to detect and deter misrepresentation of identity, for example through testing for performance-enhancing substances. 

The chapter concludes by looking beyond Hart’s concern with rules as a matter of form, arguing that we should further assess sport through reference to a fairness that encompasses dignity and autonomy (Hart 1994; Rawls 1964; Rawls 1971).

Games, IP and AI

'Intellectual Property Law in Gaming and Artificial Intelligence' by Enrico Bonadio and Alina Trapova in Chris Bevan (ed), Handbook on Property Law & Theory (Elgar, forthcoming 2024) comments 

This chapter focuses on copyright and patent aspects of AI in gaming. As is known, copyright law protects original creative expression, while patents safeguard new inventions capable of industrial application. On the copyright side, the central classic question is what video games are in terms of protectable subject matter. This issue of the video games’ legal nature is rather old, but still pertinent topic. By now, it has been widely accepted that video games are complex subject matter from a copyright perspective, comprising not just a software, but also graphic and sound elements that contribute to the unique creative value of the game. That said, different jurisdictions adopt varying approaches to the nature of video games with some classifying them as predominantly computer programs and others dissecting the different elements in the game or treating the game as an audio-visual work as a whole. Patents instead have historically attracted less attention. Nonetheless, these can be extremely important for some hardware, software, development tools and other middleware companies, but as it currently stands the considerable cost tied to patents renders them less utilised in the field. 

Against this background, AI has stepped in to not only disrupt classical IP models, but to also offer a wide range of immersive interactive experiences for gaming; thus, opening new avenues for exploitation. As far as copyright law is concerned, the infusion of an AI element into the game provokes questions of authorship when it comes to in-game creativity. Put differently, who is the author and owner of creative expressions when they are created by players within the context of playing the game where certain interactions are driven (and often dictated) by AI? When it comes to patents and AI in this industry, central issues revolve around whether inventions covering the video games’ mechanics constitute patentable subject matter because they have technical features (and not just an unpatentable set of rules developed to be executed by hardware including a console or computer); and in general, whether patents protecting video games are too broad so as to discourage technological progress in this field. 

This chapter starts with a brief explanation of the influence of AI in gaming (Section 2). It then moves to sketch out the copyright law authorship and in-game creativity challenges (Section 3). Next, it turns to the several patent law conundrums in the field (Section 4). The final part (Section 4) concludes the discussion by arguing that while AI in gaming has been rather recently implemented, the fast pace with which this creative industry develops will certainly quickly transform the experience of video game players, but also the manner in which one understands (intellectual) property in-game.

Ouch

In Stergiou v Citibank Savings Ltd [2005] ACTCA 15  Crispin P states

 [8]. .... On 12 May 1995 Higgins J gave judgment for the appellants. His Honour observed, in passing, that the pleadings, even then, had followed a "tortuous and confusing course" and noted that Citibank Savings Ltd had been unable to provide an adequate explanation for certain debits from the appellants’ accounts. Consequently, despite the appellants’ failure to make the agreed payments, it had not been demonstrated that, as at 22 January 1992, there had been a default under the mortgage for the period of one month required to justify the issue of a notice under s 93 of the Land Titles Act. 

[9]. Citibank Savings Ltd appealed from this decision and on 13 June 1996 its appeal was upheld by a Full Court of the Federal Court, apparently on the basis that the claim had required proof that the appellants had been in default as at 23 March 1992, when the ejectment proceedings commenced, rather than 22 January 1992. 

[10]. However, this victory was again short lived. The matter was remitted to Higgins J for rehearing. On 28 August 1997 his Honour again found for the appellants on the basis that Citibank Savings Ltd had been equally unable to demonstrate that they had been in default for the requisite period by the later date. 

[11]. The appellants were left to enjoy their apparently crushing victory without having to fend off any further attempts to obtain possession of their house until 2003. However, they obviously did not subscribe to the view that ‘sleeping dogs should be let lie’ and Mr Stergiou continued to pursue his claim and that of his fellow plaintiffs with remarkable diligence. He almost invariably appeared in person and his face quickly became familiar to counsel who frequented the Friday motions list. He sometimes made apparently wild allegations against bank officers, lawyers and other people. He seemed convinced of the truth of such allegations, despite the absence of any evidence to support them, though it was not always easy to determine whether they were intended to be taken literally or were mere hyperbole. On at least one occasion he responded to my entreaty to seek legal advice by telling me that he had seen many lawyers but that none had agreed with him. 

[12]. The appellant’s claim alleged, in essence, that Citibank Savings Ltd had been involved in a conspiracy with various members of the legal profession against the appellants and the other plaintiffs and that they were entitled to damages for "mental anguish" in respect of certain errors that Citibank Savings Ltd had made and for ejectment from the house. There were also actions against various firms of solicitors and these claims involved proceedings in this Court, the Federal Court and the High Court of Australia. The appellants consistently failed but no fresh proceedings were brought against them and it appeared that Citibank Savings Ltd had simply decided to keep its corporate head down until this spate of proceedings had been completed. ... 

[16]. This notice also failed to elicit any response and on 19 February 2003 the current proceedings were commenced on behalf of Citibank Savings Ltd against the appellants. This time the bank trimmed its case, avowedly to give the appellants the benefit of any doubt and, perhaps, to avoid becoming embroiled in arguments over any disputed items. Reliance upon any default prior to 1 July 1992 was abandoned and the claim was founded upon a notice that had claimed only the sum of $160,000 secured by the mortgage rather than the full amount borrowed. 

[17]. The proceedings were duly heard by Connolly J who gave judgment on 21 May 2004, finding for Citibank Savings Ltd and making orders for the possession of the house and payment of costs. The appellants promptly appealed. 

[18]. Since any claim for the disputed amounts had been abandoned and no payments of principal or interest had been made for twelve and a half years, one might have thought that the appeal would have had little chance of success. Furthermore, the years had apparently taken their toll, not only on Mr Stergiou’s businesses but also on his health. He was unable to prepare the appeal books normally required and when the matter was called on for hearing before the Full Court of the Court of Appeal on 16 February 2005, it became obvious that his hearing had deteriorated. He appeared a small, tired, sick David forced to fight a corporate Goliath without any sling or stones. 

[19]. Yet, unexpectedly, he launched one legal missile. He handed up an historical company extract provided by the Australian Securities and Investments Commission that revealed that Citibank Savings Ltd had been deregistered on 13 June 1996. 

[20]. That was, of course, the day upon which the Full Federal Court delivered judgment on the original claim in its favour and remitted its earlier claim for rehearing. There is no reason to suppose that this act of corporate suicide was precipitated by the prospect of further litigation with the appellants but it was immediately clear to the respondent to the appeal and the Court that its consequences for the ensuing litigation had been nonetheless catastrophic. All proceedings for or against a deregistered company are a nullity: see for example, International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 1 All ER 1017. 

[21]. At this point Mr Meagher SC, who appeared for the respondent and until then had believed he had been appearing for a company that was registered and entitled to be represented by him, understandably sought an adjournment to enable those instructing him to verify the accuracy of the record and consider their position. 

[22]. It was, of course, startling to find that legal proceedings had been maintained by and against Citibank Savings Ltd throughout a period of nearly nine years after the company had been deregistered. However, the solicitors ostensibly retained to act for the company throughout that period had not been informed either of its deregistration or of the assignment of its rights under the mortgage. They presumably acted upon an assumption that those operating a major banking institution would have known whether the company they thought they worked for actually existed. Nonetheless, the potential implications for them and the bank officers that instructed them were at least interesting. The adjournment was duly granted. ...   

[27]. First, I am unable to see how orders could be made in proceedings that are a nullity that would not equally be nullities. 

[28]. Second, the application is made by two companies, one that is unregistered, and hence has no standing to make any such application, and the other that is not a party to the proceedings. 

[29]. Third, I am unable to accept that it would be an appropriate exercise of the power conferred by s 601AH of the Corporations Act (2001) (Cth) to reinstate a company, not for the purpose of asserting any rights of or against it, but merely as a technical device intended to retrospectively validate proceedings that have been a nullity since their inception. Even if so validated, the proceedings could ultimately have no effect on the rights or obligations of the reinstated company because it had divested itself of any rights under the mortgage. 

[30]. Fourth, even if the proceedings could be retrospectively validated, the appellants would not only be entitled to succeed in their appeal but to an order for summary judgment. The proceedings were founded upon the service of a s 93 notice invalidly issued by a deregistered company demanding payment of a debt which had not been owed to it. 

[31]. Fifth, I am unable to see anything in s 601AH that suggests that the power thereby conferred was intended to permit the retrospective validation of orders made in proceedings that were a nullity at a time when the orders were made. 

[32]. Sixth, no issue as to whether Citibank Pty Ltd was entitled to possession of the appellants’ house or had any rights against them was ever litigated before Connolly J and I do not accept that they could be effectively denied a hearing on such issues by an amendment of the judgment in the manner suggested. 

[33]. Seventh, it would in any event be inappropriate for such an approach to be taken on appeal. 

[34]. Accordingly, I can see no basis for the exercise of any discretion provided by s 601AH and the application must be dismissed. 

[35]. In view of the concession that the proceedings before Connolly J were a nullity, the appeal will presumably proceed unopposed and the appellants will live to litigate again should Citibank Pty Ltd decide to start a new action against them.

Rule Of Law

'The Rule of Law' by Cass R. Sunstein comments 

The concept of the rule of law is invoked for purposes that are both numerous and diverse, and that concept is often said to overlap with, or to require, an assortment of other practices and ideals, including democracy, free elections, free markets, property rights, and freedom of speech. It is best to understand the concept in a more specific way, with a commitment to seven principles: (1) clear, general, publicly accessible rules laid down in advance; (2) prospectivity rather than retroactivity; (3) conformity between law on the books and law in the world; (4) hearing rights; (5) some degree of separation between (a) law-making and law enforcement and (b) interpretation of law; (6) no unduly rapid changes in the law; and (7) no contradictions or palpable inconsistency in the law. This account of the rule of law conflicts with those offered by (among many others) Friedrich Hayek and Morton Horwitz, who conflate the idea with other, quite different ideas and practices. Of course it is true that the seven principles can be specified in different ways, broadly compatible with the goal of describing the rule of law as a distinct concept, and some of the seven principles might be understood to be more fundamental than others.

Nonhuman Animals, Extraterrestrials and AI

'Harm to Nonhuman Animals from AI: a Systematic Account and Framework' by Simon Coghlan and Christine Parker in (2023) 36(25) Philosophy & Technology comments 

This paper provides a systematic account of how artificial intelligence (AI) technologies could harm nonhuman animals and explains why animal harms, often neglected in AI ethics, should be better recognised. After giving reasons for caring about animals and outlining the nature of animal harm, interests, and wellbeing, the paper develops a comprehensive ‘harms framework’ which draws on scientist David Fraser’s influential mapping of human activities that impact on sentient animals. The harms framework is fleshed out with examples inspired by both scholarly literature and media reports. This systematic account and framework should help inform ethical analyses of AI’s impact on animals and serve as a comprehensive and clear basis for the development and regulation of AI technologies to prevent and mitigate harm to nonhumans. 

... This paper provides a systematic account and a ‘harms framework’ for understanding how artificial intelligence (AI) technologies could damage the interests of nonhuman animals (hereafter ‘animals’). Technology has sometimes greatly benefitted animals, such as via modern veterinary medicine or agricultural machines that relieved ‘beasts of burden’ (Linzey & Linzey, 2016). Yet, technology has also profoundly harmed nonhumans. Construction of the Chicago stockyards and its assembly-line systems in the 1800s, for example, enabled the mass slaughter and processing of animals (Blanchette, 2020; Sinclair, 2002). Around the 1950s, specialised factory-farming technologies like sow stalls, battery cages, and automated sheds further amplified intentional harm to farmed individuals. The Chicago stockyards also soon led to Henry Ford’s assembly-line automobiles, the modern ancestors of which unintentionally kill and injure millions of animals annually (Ree et al., 2015). 

Today, in the twenty-first century, AI has significant potential to harm animals. AI refers to digital technologies that perform tasks associated with intelligent beings like classifying, predicting, and inferring (Copeland, 2022). AI’s growing power owes much to increasing data from, for example, the digital economy, online life, and manifold and integrated sensors in the environment and on or in human and animal bodies (e.g. as wearables)—the so-called Internet of Things or IoT. Its power also stems from modern machine learning (ML), including machine vision, natural language processing, and speech recognition. 

In ML, a system is trained on data from which it learns to make new classifications and inferences beyond its explicit programming. We shall in this paper side-step human-level or general AI (and AI that is arguably sentient), concentrating instead on narrow (and non-sentient) AI that is developed and used for specific purposes (Russell, 2019),Footnote 1 which is arguably of more pressing moral concern than the emergence of very human-like AI. 

Some existing technologies used to manage animals, such as automation in chicken sheds and dairies, may be augmented by AI. Moreover, some robots, drones, and vehicles incorporate AI in ways that may benefit or harm animals. Often the intention in developing and using AI is to positively benefit animals. For example, smart home applications for animal companions (Bhatia et al., 2020) and smart agriculture (Makinde et al., 2019; Neethirajan, 2021b) are often marketed as boons for animal welfare through better monitoring and control of the conditions in which they are kept. Another use that might benefit animals is AI image recognition to help detect illegal wildlife trafficking (O’Brien & Pirotta, 2022). Yet, as we show in some detail, AI can also act—both independently and with existing technologies—to create and amplify harms to animals (Sparrow & Howard, 2021; Tuyttens et al., 2022). 

A tendency exists to see advances in AI as inevitably bringing ‘improvements across every aspect of life’ (Santow, 2020). For example, autonomous machine intelligence can seem more objective and less prejudiced than human intelligence. Nonetheless, society is increasingly recognising AI’s potential for ill (Pasquale, 2020; Tasioulas, 2022; Yeung, 2022). Despite this, the burgeoning scholarship in AI ethics (Bender et al., 2021; Buolamwini & Gebru, 2018; Eubanks, 2018; O’Neil, 2016), while vital and sometimes courageous in critiquing Big Tech power and algorithmic injustice, has largely ignored animals. While some ethicists, including Peter Singer (Singer & Tse, 2022), have recently begun to correct this oversight (see also, e.g.Bendel, 2016, 2018; Bossert & Hagendorff, 2021a; Hagendorff, 2022; Owe & Baum, 2021; Ziesche, 2021), dedicated work on AI and animals is relatively rare. 

This paper’s systematic account of animal harm helps address that gap by setting out the breadth of contexts and plurality of ways in which animals may be harmed by AI. Drawing on the work of animal scientist David Fraser (Fraser, 2012), we develop a harms framework that includes intentional, unintentional, proximate, and more distant impacts of AI. While we do not propose specific ethical or legal responses, the framework provides a comprehensive and clear basis for crafting design, regulatory, and policy responses for animals. 

The paper runs as follows. Section 2 outlines why concern for animal harms is warranted despite a general neglect of animals in AI ethics scholarship, explains the plural range of harms animals can arguably experience, and introduces a practical five-part harms framework or typology that recognises different types and causes of harm to animals from AI. The framework includes intentional harms that are legal or condemned, direct and indirect unintentional harm, and foregone benefits. Section 3 then uses the framework to identify and illustrate actual and possible AI harms to animals in each of the five categories, based on a narrative review of literature. Section 4 concludes by considering implications of our framework and suggesting directions for further research.

'Restating Copyright Law’s Originality Requirement' by Justin Hughes in (2021) 44 Columbia Journal of Law & Arts 383 notes 

The Comments and Reporters’ Notes to § 6 devote an unusual amount of space to human authorship. The draft Restatement takes the view that “[t]o qualify for copyright protection, a work of authorship must be authored by a human being,” and “not, for example . . . works created by nonhuman animals.” The limited case law in this area is sufficiently nuanced as to make one wonder if the Reporters are trying to eliminate preemptively the possibility of “authorship” by artificial intelligence, but this is apparently not their intent. Recognizing that “[a] computer program might someday produce an output so divorced from the original human creator,” the “Restatement does not take a position on” authorship by artificial minds. 

The case law on nonhuman authorship is basically of two sorts. First, there are the cases in which the literary work in question was allegedly authored by sentient beings of a divine, celestial, or spiritual nature; I will call these the “spiritual being cases.” Second, there is one case—the 2018 Naruto v. Slater decision—in which the visual works in question (photos) were arguably authored by a nonhuman primate. The Naruto decision was a fairly singular exercise. People for the Ethical Treatment of Animals (PETA) attempted to bring suit on behalf of Naruto, a crested macaque monkey, against the publisher (and copyright claimant) of a book called Monkey Selfies. 

Both the district court and Ninth Circuit panel concluded that animals do not have standing under Title 17 using “a simple rule of statutory interpretation” previously crafted by the Ninth Circuit: “[I]f an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing.”  This does not really strike me as a principle of copyright law. It was a ruling that nonhuman animals do not have standing under federal law when the law is silent on that issue, not a holding that, as the draft Restatement represents, “[t]he photographs taken by [nonhuman animals] do not qualify for copyright protection because they were not authored by a human being.” Moreover, the connection between the Naruto fact pattern and the spiritual being cases was only made by the Naruto trial court, not the Ninth Circuit. 

It is true that the spiritual being cases have pondered the question of whether a work “claimed to embody the words of celestial beings rather than human beings[] is copyrightable at all.” But we are adrift in terms of direct answers that are holdings and not dicta. Instead, when originality can be attributed to combined activities of humans and sentient nonhumans, courts will conclude that the human participant(s) added enough original expression to support a copyright. For example, in the Ninth Circuit’s 1997 Urantia Foundation v. Maaherra decision, the panel found that humans “pos[ing] specific questions to the spiritual beings,” then selecting and arranging the spiritual beings’ answers was sufficiently creative to confer a copyright. 

Similarly, in the 2000 Penguin Books v. New Christian Church of Full Endeavor decision, a judge in the Southern District of New York considered a “defense of lack of originality” based on the human originator of a book—Helen Schucman— testifying that “she began to hear a ‘Voice’ that would speak to her whenever she was prepared to listen”; that the Voice told her to take notes; and that, for seven years, “she filled nearly thirty stenographic notebooks with words she believed were dictated to her by the Voice". 

But she also made revisions with a (human) collaborator, William Thetford. In addition, “at least some of the editing and shaping of the manuscript was initiated by Schucman; the manuscript went through two additional drafts, one edited by Schucman, one edited by Schucman in collaboration with Thetford; and during this process sections were “rewritten so that the test would flow smoothly and communicate clearly its intended message.” Another colleague, Kenneth Wapnick, later made additional editorial suggestions. 

Concluding that the arrangement of the materials had been determined by the human contributors, that the text “reflect[ed] many of Schucman’s personal interests and tastes,” and that all the editorial changes “were initiated by Schucman, Thetford, or Wapnick,” the court found that there was enough creativity to support human authorship (regardless of whether there was divine joint authorship). But the Penguin Books court went further, offering the alternative reasoning that the work was, plain and simple, “a literary work authored by Schucman” and that, “[as] a matter of law, dictation from a non-human source should not be a bar to a copyright. 

Perhaps the only other spiritual beings case of note is a 1941 district court decision, Oliver v St Germain Foundation, in which the copyright owner Frederick Spencer Oliver, describes himself as the amanuensis to whom “letters” were dictated by Phylos the Thibetan, a spirit.  But the court does not directly hold that the work is uncopyrightable because of the spiritual being source of the expression. Instead, the court treats the spiritual being’s words as “facts” being reported by Frederick Spencer Oliver, analogous to an author of a series of interviews (with humans), who would not have copyright over the words of the interviewees.  The Oliver court also reasons that the defendant copied neither prose nor style and arrangement of the plaintiff’s work,  intimating that those might be protected as original expression from the human contributor to the project. 

Does any of this belong in a Restatement of Copyright? I doubt it. The Copyright Office Compendium says that the office will not register works by nonhumans, but we do not need an ALI Restatement to regurgitate an agency regulation that is not binding on courts. The day sentient refugees from some intergalactic war arrive on Earth and are granted asylum in Iceland, copyright law will be the least of our problems. But I am confident that once those sentient aliens are “nationals” in a Berne country, nothing in Naruto, Urania, Penguin Books, or Oliver will keep them from being treated as “authors” under American copyright law. 

Similarly, once some AI is sentient enough to demand its own civil rights and protection under the Thirteenth Amendment, my guess is that “person” in copyright law will not be limited to homo sapiens. (Since the Reporters apparently agreed todefer to the future on the question of AI authorship, some bits and pieces of the 2020 draft—like Illustration 6 to § 6—should probably be dropped.). Same for the day when a chimeric half human/half horse is proven to be sentient; “person” in copyright law will include them. These issues are fun conjecture for academics, but such issues are so rarefied as to wonder why the draft Restatement discusses them at all