Landmark Canadian Hyperlink Case Goes To Supreme Court 118
An anonymous reader writes "Vancouver businessman Wayne Crookes is trying to reverse a decision by BC Supreme Court judge Stephen Kelleher that linking is not the same as publishing. He's been given permission to appeal it to the Supreme Court of Canada. If he wins, it could mean the end of the net in Canada and will reverberate around the world. 'The notion that someone might be considered a publisher merely by linking to someone else's content, I think could have a potentially huge chilling affect [sic] and, for that reason alone, is going to have a major impact on the shape of the Internet in Canada,' says Ottawa law professor Michael Geist. Hyperlinking is what the web is all about, says p2pnet founder Jon Newton. 'Without it, the Internet would become a drab and pale facsimile of the exciting news, data and information medium it is today. Instead, each item would be isolated from every other item, and online defamation lawsuits aimed at anyone and everyone with a Web site would instantly become commonplace.'"
Not just the Supreme Court... (Score:5, Insightful)
What gets me is not that this is going to the supreme court (where I'm sure it'll be tossed out regardless) but that it when it was dismissed from the BC Court of Appeals, there was a dissenting judge...
Government _really_ needs to become better educated on technology and how the 'tubes' work. See - the same thing happens up here in Canada too!
It's not so obvious I think (Score:2)
It might seem obvious that linking is not publishing. But wait. Let's think about this more clearly for a second. Is the page you are looking at one monolithic published chunk of text? No, it's many auto-expanded links. Did the images show up as links to images or did your browser go and fetch those images and display them.
Thus a person can create a set of links that display art works or copyrighted images from other sites simply by placing links in his documents.
likewise one can have kinds of links or
Re:It's not so obvious I think (Score:4, Interesting)
Re:It's not so obvious I think (Score:4, Interesting)
"Publishing" is making some content available to the public. The question is really is advertising a public location for a given piece of content "publishing" that content. Further questions could also be asked, such as: Is owning the server that the content on make you the publisher? In this latter case, I think we need to draw parallels with the printing industry, because they have a lot of precedent that we wouldn't want to just throw away.
1. Owning the server and network connection is like owning a printing press.
2. Links are advertisements.
3. Publishing is the act of making it available. In the case of public (free) publishing, that would be uploading the content to the web server.
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I already anticipated your response in a post further down the page [slashdot.org]. Se there for more discussion. But to offer a quick example to show why the line between "linking" and "hosting" is not so clear consider the following.
someone takes a copyright image and XORs it with random data taken from some publicly avalaible list of random numbers. If they host this image it's not violating any copyright. it's just a random piece of crap.
now some third party links to both this image and to the random number key. I
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That's not mere linking though. That's serving data. There would be a lot of legal hairs to split (probably based on intent) to determine which of the several actors there were publishing the content. In your case, the someone who published the XORed content with the intent that the XOR be reversed has published (the intent is what matters). OTOH, if you create a key that when applied to someone else's unrelated work in order to reproduce a copyrighted work, you are the publisher (since you were the one tha
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someone takes a copyright image and XORs it with random data taken from some publicly avalaible list of random numbers. If they host this image it's not violating any copyright. it's just a random piece of crap.
This premise is faulty. It is a derivative work - one with zero additional creative expression for that matter. Just because it isn't obviously a derivative work without the right context doesn't make it less so.
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If so, every newspaper that contains a listing of what movies are showing in what theater is "publishing" the movies in question and TV Guide is publishing an awful lot of television content, week in and week out.
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Anticipating the comeback to my post above....
one might try to argue "the linker to hosted material is not the publisher. the publisher is the person hosting the material".
I'd agree in large measure but one can intentionally muddy this a bit. consider the following thought experiment.
I divide a movie into a million single pixel movies. Byt themselves none of these single pixel movies is an "image" it's just a time series of color. Now I host these on 1 million different web sites.
I then create a page l
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So, you wonder if you transcode the movie into an incredibly inefficient codec and then serve it to people, does that make you a publisher of that media? Of course it does, you served it up.
Again, that is considerably more than merely linking.
Otherwise, nobody is a publisher.
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But is this linking or including? I mean, yes a link tells the browser where to find the information BUT the HTML/Javascript code does also include it into the page. If all that visible for the link is a button or link and a title then in what way does it constitute republishing the original content. The user must click on the link to access the original content.
On many browsers PDF used to be something that you had to download to view. Not any more. Likewise on some browsers you can mouse over a link and see a preview of the page. IN the very early days of hyperlinking (things akin to lynx) images were not embedded but were downloadable.
As browsers move into the future more and more things that were "downloads" become embedds. this happens without the HTML changing. it's the browsers that are changing.
thus you can't really draw the line you want to draw so cl
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As browsers move into the future more and more things that were "downloads" become embedds. this happens without the HTML changing. it's the browsers that are changing.
thus you can't really draw the line you want to draw so clearly.
Poppycock. The act of "publishing" in this context is clearly the act of serving the data to the end user. Not the act of inducing the end user's browser to ask for the data.
In all of your examples, a link points the way to an official server providing the data. You keep talking about greedy browsers pre-fetching the data. So? The server where it is hosted decides who the data goes to. The server is free to check URL referal codes to confirm the link came from them (many image hosting sites do precisely tha
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SO If I created a browser plugin that transported a movie and displayed it would I have published that video?
It's not actually that hard. The answer is no. The machines where the torrent grabs the video each published a small portion of it, but you just pointed to it.
Otherwise, If I say to someone "Hey, you should really read this book, you can buy it in the store over there", I have published the book. I think we can agree that such a thing is patently absurd.
As for the image case, there is not even a need to resort to law at all. Only a fool would link to an image on another site if the other site's owner doesn'
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Glad to see there's yet another Canadian who doesn't understand how our court system works. You'll note the sarcasm there. Believing that having non-tech-savvy judges is the reason behind this is being naive. Having a dissenting judge doesn't make a case invalid for the SCC either. It means that on some technical or rule of law argument there was a judge disagreeing with what the other two said(this happens a lot). In order to further clarify this disagreement and standardize the RoL it goes to the SCC
Here in America... (Score:2, Insightful)
Here in the U.S. we routinely send important cases up to the Supreme Court for decision.
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Yes. Everybody with sufficient money and time appeals to the US Supreme Court. Now, how many of those cases actually are accepted by the US Supreme Court? 1%? [from http://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_United_States#Selection_of_cases [wikipedia.org]: "receives approximately 10,000 petitions for certiorari, of which approximately 100 are granted"]
Re:Here in America... (Score:4, Informative)
Actually, money is not the deciding factor on what goes to the Supreme Court. In fact, there are countless cases where the appellant is indigent.
The Supreme Court is most interested in cases where an important question of law is at issue. Not granting certiorari (i.e. not hearing a case -- usually just abbreviated "cert") just means that the Supreme Court feels that either the question isn't important and/or the appellate court got it right, so they don't want to waste time on it.
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While the court itself doesn't care about the monetary value of the case, it takes a LOT of money for any given case to get there, and if you do get there, you definitely don't want to cheap out on preparation if you really want your case to be accepted.
As for the number of cases they accept, think of it another way. The court historically handles under 100 cases every year [the wikipedia article mentioned they used to do around 150 in the '80s and '90s]. So is it just a fluke that every year only around
WTF (Score:1)
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Well I can say he's certainly not a crooke.
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Upon some additional research, it appears that very pun, surely an obvious one, is one of the many things he's suing over: He alleges that it was libelous for some websites to refer to him and his associates as a "gang of Crookes".
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what a crock
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Apparently he's a former official of the Canadian Green Party who is butthurt that people say mean things about him on the internet.
I just hope this lawsuit provides enough cover for him to get the horses and the Thai ladyboys out of the country before the press finds out.
The end of the 'net in Canada? (Score:2)
Gasp! Well, no actually.
This stupid case was tossed out in the first instance, and will certainly lose in the second...
Enough with the sensationalist headlines already.
Re:The end of the 'net in Canada? (Score:5, Insightful)
This stupid case was tossed out in the first instance, and will certainly lose in the second...
Never underestimate the the ignorance of technology of governments and their courts.
Re:The end of the 'net in Canada? (Score:5, Interesting)
Actually, I think that the courts pretty much demonstrated good understanding of technology in the first judgement.
It's normal that the plaintiff should have a right of appeal - that does not mean he'll win, or that the appeal court does not 'get' the Web.
This case hinges on whether or not linking is publishing, which - under the admittedly fairly bonkers rules of English-based defamation laws, (see http://en.wikipedia.org/wiki/Defamation [wikipedia.org]), determines whether or not someone has been libellous, (since we're talking about the written, rather than the spoken word).
In the initial judgement, the Court reasoned, "...hyperlinks...are analogous to footnotes, rather than constituting a 'republication.' "
In other words, he did not repeat the libel, so no case.
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This court also, 4 months ago, decided in Grant v. Torstar Corp. [canlii.org] to create a new defence against defamation of "responsible communication on matters of public interest". This new defence allows citizens (includin
"Given permission to...pay lawyers" (Score:5, Funny)
Maybe the internet would be better off! (Score:3, Insightful)
Really, I think the whole sturm and drang of the doom of the internet is so much a red herring. This would hurt content aggregators, of course. They would ultimately have to pony up for links to interesting sites, rather than the benefit of a no-follow link. But, between google bombing, link farms and all the other useless link content on the internet, I would not mind a sweeping away of sites that really offer no value at all. Far from being this rich and beautiful thing, most of today's internet is just an over-advertised waste of time.
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Ironic considering your sig. I giggled, but throw in some advertising and your site may fall into the latter category.
Not trying to flamebait, but...
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Ironic considering your sig. I giggled, but throw in some advertising and your site may fall into the latter category.
You've got a point. Perhaps I should make my site's motto - "An underadvertised waste of time."
..or the problem would be circumvented... (Score:5, Interesting)
> " Instead, each item would be isolated from every other item, and online defamation lawsuits aimed at anyone and everyone with a Web site would instantly become commonplace."
Actually, what would happen is everyone would host their websites offshore in nations with looser copyright laws, and the Internet would become increasingly decentralized as larger, "legitimate" players are isolated, and independent, "less legitimate" players circumvent legislation and continue to link.
Ironically, this will *hurt* big media.
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nations with looser copyright laws
This is one place where the standard spelling error seen on SlashDot would completely reverse the meaning. Glad you spelled it correctly.
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Granted, I'm not Canadian, nor a lawyer, but I've been accused of having a Canadian accent and I know-it-all, so I'll feel free to comment anyway. It appears this case isn't really about copyright (directly) but instead just about libel. Copyright would be silly, of course, since nothing is copied, but defamation is at least slightly more murky (though only slightly). What the plaintiff wants to know if whether by linking to potentially defamatory material, is the defendant effectively spreading the materia
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what would happen is everyone would host their websites offshore in nations with looser copyright laws
No. Even if you're using an offshore host, you'd still be breaking the law.
You'd have to move yourself offshore, not just your content.
What an understatement (Score:2)
[blockquote]Hyperlinking is what the web is all about, says p2pnet founder Jon Newton. 'Without it, the Internet would become a drab and pale facsimile of the exciting news, data and information medium it is today. [/blockquote]
Um, without hyperlinking it wouldn't be much of a "web" at all, would it? Why is the defendent so clueless about his own case? This isn't a matter of something interesting becoming drab, it's a matter of whether Canada chooses to exclude itself from the civilized world.
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As you can plainly see, web standards are very important to me!
Re:What an understatement (Score:4, Funny)
[superfluous-tag-that-will-be-ignored]
Putting HTML tags inside square brackets is a "standard" now ?
[/superfluous-tag-that-will-be-ignored]
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I confused PHPBB code by accident. I'm not in the habit of entering HTML in a form textarea.
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Why is the defendent so clueless about his own case? This isn't a matter of something interesting becoming drab, it's a matter of whether Canada chooses to exclude itself from the civilized world.
I haven't RTFA (this is slashdot) - but it strikes me that it's the plaintiff (and not the defendant) - that's clueless. This is confirmed by the fact that he doesn't like people saying nasty things about him - but went into politics anyway.
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I haven't RTFA (this is slashdot) - but it strikes me that it's the plaintiff (and not the defendant) - that's clueless. This is confirmed by the fact that he doesn't like people saying nasty things about him - but went into politics anyway.
They're both clueless, then. The defendent is claiming that removing hyperlinking will make the web less interesting, when in fact hyperlinking is the only thing defining it as a web!
Levels of Indirection? (Score:3, Interesting)
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What? You've published the entire Internet!?!
So you'd be guilty of copyright, liable, and bad spelling?
Can I get a copy of your Internet off you? Limewire perhaps? /stupid2amme
Should ban voice to voice (Score:2)
Next he will want us believing that talking about his site is the same as showing it on TV.
If he doesn't want anyone linking to his site, then there are two solutions:
- Don't have a web site
- If there is a 'referrer' header, kick people to site that would appreciate the traffic
Either way, if this doesn't get thrown out, then we will need Geist to and knock some sense into those judges.
This is about defamation not copyright (Score:3, Interesting)
The cases that worry me more are the ones that concern linking (especially deep linking) and copyright.
This case is about defamation, apprently the written kind which is called libel.
From what I can see (and I am not a lawyer or Canadian), the following has been held:
Thomas v CBC 1981 4 WWR 289
I would be surprised if this case was decided on technical analysis of the exact nature of a hyperlink in HTML. (Of course I am often surprised) I think they might decide based on the effect of publishing the hyperlink. If it has the effect of slander, then it is slander.
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It has to be the "publication of matter conveying a defamatory imputation". The hyperlink might "convey a defamatory imputation" if (and only if) someone clicks on it to reach the libelous material, but unless publication of the hyperlink itself is what conveys the defamatory imputation, it shouldn't be covered. Since the lower court already decided that way and there's a real-world analog in footnotes (where publishing a footnote which refers to a defam
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I Am Not A Lawyer, I Am Not A Crook, I Am Not A Crooked Lawyer?
If you want a preview of the result (Score:2, Informative)
Look at German web sites. Many have a disclaimer about the links on the site (translation follows): "Mit Urteil vom 12. Mai 1998 hat das Landgericht Hamburg entschieden, daß man durch die Ausbringung eines Links die Inhalte der gelinkten Seiten sich zu eigen macht. Dies kann nur dadurch verhindert werden, dass man sich ausdrücklich von diesem Inhalt distanziert. Für alle Links gilt: Ich distanziere ich mich hiermit ausdrücklich von allen Inhalten aller gelinkten Seiten auf meiner Homepag
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Canadian hyperlink? (Score:5, Funny)
Would that be the <EH HREF...> ... </EH> tags?
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Maybe this should be a part of the standard. HTML5 anyone? It's usage would be instant and 100% saturated in the market (mainly because you are banned from using it). You then describe in the standard that is the canadian linking which the law refers to. Then you redefine as being some synonym of "link." Problem solved, eh?
Context (Score:5, Informative)
If you read the previous articles about this yahoo's quixotic quest, you'll find that he's not attacking the general notion of hyperlinking per se, but whether linking to allegedly defamatory content is, in and of itself, an act of defamation. To me, that's like saying that if a print newspaper publishes something libelous or defamatory, then anyone advertising, selling, or telling you where you can buy that newspaper is also guilty of defamation. The previous ruling seems to establish a test of context -- a mere link to the material is not actionable, but a link actively promoted in the context of implying that the content is true might be.
But in any case, hyperlinking is not "publishing," and a blanket ruling to that effect would be incredibly ignorant. There are ways to deal with the specific parameters of this case without causing collateral damage to the Net and undermining the very basic concepts that make it what it is.
Next stop, scholarly journals. (Score:2, Interesting)
How to libel without publishing (Score:2)
URLs map ascii codes to web pages that return characters. So http://ascii.org/65 [ascii.org] returns a page with the character 'A'.
I can then send any possible libelous message entirely using hyperlinks, without actually publishing the message on my website.
Hmmm... I think this is less about the technology and more about the intent. If I link to an article, I can do it in a neutral way, in a critical way, or in a supportive way. I can use it to bolster my argument or just as a refe
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a rel="support4myargument/transitive_closure" href="www.thegoogleweb"???
Wayne will lose (Score:3, Insightful)
Speaking as a Canadian, I think the snowball has a better chance in our supreme courts. My prediction is that 8 or 9 of the supreme court justices will rule against him.
Believe it or not, I think our supreme court is pretty good. They're smart people and they make sane decisions.
WE have the power! (Score:1)
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Wireless mesh networks will break down, though, over thousands of hops.
And, consumers don't care. Consumers just want their music and videos. Those, they can get from the mass media, which will have agreements that let them link to each other.
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Reversing it wouldn't affect just the net.... (Score:3, Insightful)
The BC court had it exactly right.... links are analogous to footnotes, and *NOT* the same thing as publishing the other material.
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The BC court had it exactly right.... links are analogous to footnotes ...
It's an apt analogy, but I expect laws regarding hyperlinks will evolve in such a way so as to consider instances where hyperlinks are not considered analogous to footnotes. Or don't you see the problem with a bibliography consisting entirely of such things as child pornography, Windows ISOs, or something that could be construed to provide material or support for terrorist organisations?
I'd agree that it's best to leave the web as it
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I like this logic! (Score:2, Interesting)
If linking is publishing, then addressing should be ownership.
I must own the bank down the street, as I've just written down its address.
Finally Phase 3 is here! -- Profit!
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Your participles are dangling.
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Canada eh? (Score:2)
But it's still 'only' a Canadian court and it's quite a stretch to immediately assume international repercussions.
Canada has signed international treaties and it'll more likely have to abide by the world's views instead of forcing it's own on the world.
"it could mean the end of the net in Canada" (Score:1)
A related question of law (Score:2)
What does the law say about direct quoting? In Canada (or the US) if I were to write "Mr. Rat Dog has claimed that Cowboy Neal engages in illegal acts with nefarious porpoises" and it is in fact the case that such an allegation has been made, am I engaging in libel merely by stating that fact? Granting for argument that a footnote does not have the same immediacy (and thus the same potency) as a hyperlink (it takes a far more trouble to follow it up), neither has the immediacy of simply stating the fact tha
Only a Matter of Time (Score:2)
History books a hundred years from now will likely read:
"And the great social and information experiment known as the Internet was brought down by the lawyers and copyright laws. The companies that ran it essentially made it strangle itself to death."
(An aside comment by myself:)
I hate to see what the lawyers will turn our world into in another 30 or 40 years. I think maybe China's idea of doing away with it all might not be so awful after all. I guess only time will tell which way of dealing with it is
Has no one read the source article? (Score:2)
The article, nicely linked :), in the Montreal Gazette says that the challenge is not attempting to overturn the concept that links are akin to footnotes. Rather, that when it was pointed out to the poster that the link pointed to defamatory material, that the link wasn't taken down---and so, the poster's inaction is what is at issue.
If the poster had converted the link to a mere textual footnote, then no one would be able to assert that the poster was acting as a publisher. But, by facilitating access to
So Google will leave Canada, too? (Score:2)
Restrictions on hyperlinking would probably crush Google's business model. Not much else there other than links.
would become a drab and pale facsimile... (Score:1)
Well yeah... that's the idea. The gatekeepers are in grave danger (is there any other kind?) of losing their power.
Redirects a way around this? (Score:1)
Analagy and I recommend (Score:2)
Hi Tom. I'm looking for a book, "Catcher in the Rye".
Hey Ralph. That's amazing, I was looking for that just last week. I made a list of where you can get it.
1. Library on 6th street. Serious restrictions on use, must return, no notes in margins.
2. Bookstore on East Main. Good place but a bit pricey. On the plus side you will have a copy with full control on how YOU use it.
3. Used bookstore on 8th and Wine. Great prices but it's a nasty neighborhood. Lot of crime recorded in the area. One might even
Implicit consent to be linked to (Score:2)
By placing your content on the open Internet, making it available upon request using the hypertext transfer protocol, and not hiding it behind a login-only session or encryption, you have implicitly consented to that content being linked to without restriction.
Tim Berners-Lee ought to make that clear to everyone.
If you want to restrict linking to your content, you need to host it on a different distribution network, other than the WorldWide Web. whose founding, essential, sine qua non assumption and princip
Take a DEEP Breath.... (Score:2)
Uh, good thing we're not getting all hysterical here....
Too late for the world (Score:2)
People in Denmark have been punished by the courts for having links to mp3 files on their webpages (links to other peoples pages)
The corporate greed runs to deep i bet.
If you can forbid linking to your content... (Score:2)
If you can forbid linking to your content, and forbid Google et al from crawling and archiving your content, and you can control what your own site's search engine returns in the way of queries, then you can make content that would be a liability if the public were able to, say, compare what you said then to what you say now...go away.
I would image that there is at least one media or news corporation that would like to have that ability.
hyperlink is not plagerism (Score:1)
Insane (Score:2)
This is insane, of course. If I link to your website, I'm just telling people where to find it. To say that one cannot link to your address would be to say that you're allowed to restrict people's speech. It would be like having a secret street address which cannot be said out loud. Absurd! Batshit insane!
What a farce (Score:1)
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Remember, there are less people in Canada that in Los Angles, and a lot friendlier.
98% of Canadians live within 120 miles of the boarder.
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What's the name of this boader?
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carbon-based life was probably a pretty dull affair before the cell wall
Re:It's aboot time, eh? (Score:4, Informative)
Remember, there are less people in Canada that in Los Angles, and a lot friendlier.
Not even close.
Population of metropolitan LA: 17.7 million [google.com]
Population of Canada: 33.3 million [google.com]
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You seem to be using a different measure of "not even close" than most people.
Canada: 75 dBpeople
LA: 72 dBpeople.
That's less than 3 dB difference. That's pretty close.
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"Remember, there are less people in Canada that in Los Angles, and a lot friendlier."
What the hell are you talking about? Los Angeles is maybe 1/3 to 1/2 the population of Canada.
Try actually living here before you speak about a place you obviously know nothing about.
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