Monday, February 28. 2011The Australian Legal System - Fatally Flawed.....John Linton .....like the people it is intended to serve. I took/wasted some time reading the AFACT vs iinet appeal judgments over the weekend spread over the two days as it is very heavy going for a legal illiterate like me. I had kept a fair bit of the published documentation from the initial case and some of the less childish published comments on it and it, again, amazed me how much money could be spent on achieving so little. The blame for this must fall squarely on the AFACT barrister, possibly partially on the briefing solicitors, for conducting such an inept case - a little like missing a penalty in soccer it was done so badly. I couldn't help thinking while reading the appeal opinions that even the appeal judges, all three of them, were basically saying "for goodness sake - even a junior barrister should have been able to show the two iinet witnesses were perjuring themselves and that you were not bringing them to account for their obvious contradictions and obfuscations let alone asking even the most obvious questions or questioning the most ridiculous of their claims as set out in their affidavits". The two judges dismissing the appeal, let alone the judge who wrote a dissenting view, have raised enough issues to make it a near certainty that AFACT will appeal to the High Court where wider views are normally taken in a different context and who knows what result that may bring? When you read the points raised by all three judges you realise that they actually progressed the legal view on downloading copyright material in no real, or any other way, benefit at all. Not that it matters in any particular way as events in Australia are a side show. Long before an appeal to the Australia High Court could be heard it seems more than likely that countries in the EU, more than likely the EU itself, will progress their own legislation that will go much further than the laws currently or about to be in place regarding copyright infringement via the internet. Like so much in life today the appeal judgment provides nothing of value and probably, if it mattered at all, did more harm than good. Australians are as criminally inclined today as inhabitants of most 'civilised' countries on the planet and whether it is stealing copyrighted material that allows the seamless transition to looting abandoned homes in flood affected areas of Queensland is an interesting question. The prevalent view in Australia seems to becoming that "if you can get away with theft then what's the problem?" Perhaps it is not drawing too long a bow to suggest that the internet and lousy parenting has allowed stealing to become the "OK" option for acquiring things a person thinks they want and other people's rights of ownership are immaterial as they can be so easily overcome. Australia has an unhappy history of dishonesty from January 26th 1788 onwards where stealing when the chances of being found out are low was inherent from that day forward by Governors, Prime Ministers, State Premiers downwards. Maybe there have been decent elements of Australian society over the last 200 or so years but it has never seemed to be a majority and today I think you would be hard pressed to find the legendary "honest man" very often in any aspect of Australian society. The saddest element of that Diogenic view is that the internet, one of the most beneficial technologies yet seen, is the major culprit of turning potential honest boys and girls into inveterate thieves before they reach puberty and therefore have little hope of ever living an honest adult life. C'mon Rataplan, time to go to the office and attempt to put in an honest day's work....if we can find something to do that would benefit from such an unusual approach in Australia. Late PS: http://www.theage.com.au/technology/technology-news/the-pirate-code-20110305-1bisn.html Copyright © Exetel Pty Ltd 2011 Trackbacks
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I wonder whether the "stealing" language used for copyright infringement is actually helpful. I suspect most people think they've "just copied" something and the copyright owner hasn't "lost" anything. Nothing physical has been taken.
This is exacerbated by the fact that many copyrighted materials we buy also come with a physical presence. What people don't realise is the use of copyrighted materials is controlled by a license and not the material on which it is delivered. To give a flip side to copyright infringement, it is also breaking copyright to show a DVD in public - or play music for that matter. Most DVDs, CDs and music downloads are sold with a home or personal use license that is not valid for large groups or the public. When someone downloads music from iTunes, they are also being granted a license. When people download other "illegal" ways, they fail to obtain a license and they break copyright. I don't think the poor attitude to copyright is lousy parenting. Otherwise real stealing would be higher. The behaviour we see today would have occurred in other generations if they had had the opportunity the internet brings. The problem is people don't understand copyright - neither what it is nor the benefits to society in having it. Comments (2)
I don't begin to accept, for one billionth of a second, that copyright thieves don't know what they are doing is illegal.
They don't give a damn about other people's ownership rights - they start as thieves early in life (with parents as larcenous as themselves) and they will continue to treat everyone's property as something they can steal - as long as they are pretty sure they can get away with it. Comments (4)
"I don't begin to accept, for one billionth of a second, that copyright thieves don't know what they are doing is illegal."
I think we'll have to agree to disagree that they "know". Up until 2007 it was illegal to record TV on a VCR. It was also illegal to copy music from a CD to a tape, MP3 player or ipod. Even now, you can only record a TV program to watch at a later time. You can only watch it once and if you watch it live, you cannot watch the recording. You also can't watch a recording made by someone other than a family or household member. Everything else is illegal. Forwarding an email may breach copyright - ie illegal. My point is that most people don't fully understand the copyright act and most people probably breach it without even knowing. This makes your general comment that copyright thieves know what they are doing is illegal to be problematic. Many breaches of copyright occur without people knowing they are doing so and I would suspect many people breach copyright without knowing they are doing so. If however you are talking about the small minority of people who are purposefully and wilfully breaching copyright - for example those who download movies, burn them to DVD etc - then I would agree with you. But that is not what you said. I put a similar argument. People know it is illegal to speed. People know what they are doing is illegal. Speeding kills. Those people who speed don't give a damn about other people's lives (with parents with as much murderous intent as themselves). Comments (2)
People who break speed limits are a---holes who don't give a damn about anyone but themselves.
People who drink and drive are criminals. People who download material clearly labeled copyright are criminals. Why have any laws at all if any individual can break them with impunity? What happens to a society comprised of such people? Comments (4)
I know very little about the legal system, much less than yourself I'm sure but from my limited understanding of all things legal these proceedings (or any for that matter) don't seem to be about what's right or wrong (what they should be about) but rather which legal team can find some sort of loophole through which to escape penalty
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My experience with the Australian legal system, fortunatley relatively little, has ALWAYS clearly demonstrated that the 'side' with the most skilled barrister(s) and most diligent solicitors always wins - irrespective of the 'rightness' of their cause.
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I don't disagree with anything mentioned above, but the fact that every corner store playing the radio in their shop as background music(and not paying the appropriate apra license fee) is breaking the law surely says copyright laws should at least be reviewed?
Its one thing to say that is wrong to break the law (most people agree) but its another to say that laws are always correct and should never change. A small (and positive) change was fact that one could not rip their CD onto an ipod or personal computer. Legislation was changed a couple of years ago (after people were found to be ignoring the law) to make this legal after politicians presumably changed their stance as to what is reasonable in regards to copyright. I'm not trying to suggest that downloading copyrighted material should be made legal, but without discussion and debate nothing will ever change and thats simply not a realistic scenario. Comment (1)
It's really quite black and white.
Someone invests a lot of money in creating a product they plan on getting paid for and other people simply take it without paying the fee the maker had expected to receive. No debate or discussion can change the basic theft of property that has become the initial corrupting influence of young children across the planet. Show me an adult who attempts to defend copyright theft and I'll show you a thief. Comments (4)
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