It's as if a silent hand reached out across Australia. You can even mark the date: December 20th.
From all the sources listed on the right under "Australian Copyright Law", there was an intense debate examining the new law, then suddenly - silence.
As if someone said, "Enough", then, "Stop dissecting and criticizing Australian law. Write about the rest of the world." The Word was spoken, and The Word was heard.
The last comments from Kim Weatherall and LawFont were on 20 December. The Sydney Morning Herald is focusing on YouTube. The last critique on Boing Boing was 25 December. TechDirt's last article was 18 December.
The ITWire from 12 December quotes Attorney-General Philip Ruddock's amorphous reassurances:
"Everyday consumers shouldn't be treated like copyright pirates. Copyright pirates shouldn't be treated like everyday consumers," Ruddock said. "In fact, anyone who uses iPods, DVDs, CDs or records television programs will benefit from the changes."
"Tonight countless Australians will no longer be breaking the law," he said, even though the new law doesn't come into effect for two weeks.
On the 18th of December, the Cooper judgment was handed down by the High Court making Mr Ruddock's reassurances sound hollow.
Why the sudden silence? If there was some official or semi-official word that went out, why aren't Australian experts writing about it? If there was no word, then why the silence?
Or is this just the infamous aussie holiday break?
The full law doesn't come into effect until 8 January. The Cooper
judgment was handed down nearly a month earlier, and redefined the law
and the terms on which it will be enforced.
Note the date of Mr
Ruddock's comments. Australian lawmakers scrambled for more than two
weeks to rewrite portions of the law.
There were a few articles which declared some things clearly outlawed in the first passage of the new law to be legal: making a copy of music onto an iPod; making a copy of a television show, but these are still outlawed acts. There is really only politicians' promises they won't be prosecuted.
For example, making a copy of a television show is now - supposedly - legal.. so long as the copy is destroyed in at "the earliest possible" time - in plainer English: ridiculous.
Australian politicians and lawmakers are going to be scrambling for years trying to explain why these laws are not draconian in the most literal sense. The authors seem to be ignorant of the changes in technology and especially information distribution on the Internet for at least 10 years or more.
Australia sough to establish itself as leader in copyright law for the world.
What has been shown is how not to right a copyright law, and how not to administer that law.
Law must either learn or become itself archaic
Governments appear to have forgotten the philosophical concepts
established in the 18th and 19th centuries. The first fact of law is
simple: Law is brutality.
At best, law is enlightened brutality, an
ordered brutality, but nothing reduces the element of brutality in law.
Law is limited by language to terminology and definition. The careful definition of terms by lawmakers is one attempt to reduce the apparent brutality in law, yet most often results in sometimes comical redefinitions. Law quickly becomes "Right-Speak" from the book "1984".
Twisted definitions usually known only to the practitioners of the law.
The result is the attitude of lawyers to their clients as "wards of the state", as lawyers are trained to consider clients. Clients treated as too ignorant or mentally deficient to understand. These increasingly arcane meanings support the superior attitude of lawyers, lawmakers, and the judiciary towards ordinary citizens - and provides an income for the interpreters.
The failure
of law is that terms change in meaning over time in popular use, and
more significantly in the application of law. Judgments redefine these terms into obscurity and arcanity. The High Court seems to have gotten the jump on the world and even Australian lawmakers. The only leadership that's been shown is to take the law quickly into inanity and uselessness.
Australia already has thousands of archaic laws on the books, too racist or petty to be enforced, but still there. Let us hope, or pray if you're so inclined, that these laws join them in the dusty shelves soon.
Weatherall's Law
This must be Kim Weatherall's day in the sun, truly. She is remarkably well-educated, a practicing lawyer in Australia with a specialty in Intellectual Property, and an active, independently-minded blogger. If she isn't one of the key advisors to the lawmakers working on the new copyright laws, someone is missing a tooth.
Still, she is a trained lawyer, and schooled in Luddist thinking. I read a treatise once about the pattern of luddist thinking, which began with a grand statement promising a wide clarifying view of an issue, then stopped when the criticism and rationale was incomplete to come to the desired conclusions. It is the tool of lawyers the world around because such unfinished syllogisms are very difficult to unwind in a timely manner. Ms Weatherall's critique of Creative Commons licensing models are too good an example.
I would never place Ms Weatherall in the same class of Luddist as Rob Hulls or Tim Holding, however. Her blog, "Weatherall's Law" is not narrow minded or reactionary. Her passion for blogging drives her beyond her training - even if you can almost feel the conflicting threads of thought in her words.
"Creative Commons is more a social movement", for example, misses the larger fact that Creative Commons does not pretend to be anything else; and that all law is a "social movement". In fact, most bad law is known by better phrasing: "social engineering."
Social movements come about when government and law fail to respond to the direction of society. They are bad when the movements are reactionary; Creative Commons is not, unless the tenor of a social movement is taken as defensive. That test has already failed since Creative Commons licensing is on the offensive. It is inadequate law and its myopic proponents who are on the reactionary defensive.
It's interesting that despite Ms Weatherall's criticisms, LawFont chose to install a Creative Commons license.
New stories
From previous analysis, it looks like the aussie High Court intended their judgment to have effect beyond the borders of Australia. Disregarding for a moment the obvious arrogance of this attitude, and the technical ignorance illustrated, recent international judgments are already overturning the attempt to establish this silly legal principle.
The French seem to want to take the limelight from Australia on regressive laws. The new French copyright law will make Open Source illegal, it appears. Open Source software has a legally defined position that has stood well internationally for decades, yet the French lawmakers want to disregard the law and the rights of the producers.
Brazil wants to force YouTube from showing a racy video. First, the court tried to force the video to be removed from YouTube; now they want it blocked from Brazilian viewers. Wasn't it the purpose of the courts to provide the truth? or access to the truth? ... That increasingly ridiculed phrase: "The truth, the whole truth, and nothing but the truth.." must not be a part of Brazilian jurisprudence and practice.
The courts should be enforcing the public's right to information. In the grand ideal, freedom of information is a bulwark of freedom.
If Australia, or any country, truly wants to take a lead, let it step forward in this direction.
Frankly, who cares if Ms Cicarelli and her banker friend had a good time on a Spanish beach? If the couple wanted privacy, maybe they shouldn't have given a pornographic show on a public beach?
And why does it make a difference if they show a little passion? That should indicate their ability to do their jobs better - more relaxed, intense, and energetic.
The US is even getting into this act. China and many southeast Asian states have been the wild card in technology piracy for decades. Any sort of contract with China has always been a gamble. You never get paid up front; and getting paid at all was like trying to roll three 7's in a row at times.
It's hard to criticize the attempt though. There can't be two people in Australia who haven't seen pirated first-run movies from China or Vietnam before the movie hit the cinema. Personal ethics aside, it's hard to resist. The theaters are just too expensive. The price takes away from enjoying the movie.
There is no question that protecting creative industry against such blatant classic piracy is necessary. Although the availability of such pirated works is one of Australian society's appealing characteristics.
And...
How the law will define society in all this is yet to be answered, not only in Australia but around the world. Western society has been an unending struggle for freedom, often hampered by those chosen to defend those freedoms because of their fear of losing control and power.
There are legitimate arguments on all sides.
At times the most specious arguments stand on the side of freedom; and the most powerful and concise on the side of control and fear. Freedom is the only real antidote to fear, yet few governments have realized that without struggle, sometimes armed struggle.
These laws may be the real test of the will for freedom for both leaders and citizens.
There is an element of danger in freedom. Those who believe in fear want everyone to live in fear. There will always be those who seek to abuse freedoms. That is the price of freedom.
Let's hope that the debates are kept intense, honest, passionate, and in the words of all are respected and considered.
As much as I admire your dedication and efforts, - And I truly do. I have read a great deal of Weatherall's Law. - I can't help but look at this situation with frustration and disgust.
I realize that as a lawyer and law teacher you must respect and believe in the law, due process, and the ultimate sense of justice.
Cynicism is the disease of middle-aged minds. I had successfully avoided it for the most part before coming to Australia. There are some cynical conclusions that are undeniable.
Frankly, I don't see how any lawyer in Australia avoids a deep sense of cynicism, even to the point of it becoming a driving force. (This is not just naive ramblings. I have a couple of friends who are lawyers. One did a sea change when he moved to the suburbs because of his disgust with the way law was practiced just a few miles away.)
It is not enough to simply dismiss the situation with the phrase, "The law is an ass.", we agree. -- That is the cynical conclusion.
The question, I suppose, is: Where do we go from here?
I do not share your faith in the judgment of the courts. Australian courts lack oversight and are highly politicized. I've seen that for myself from inside and outside the courtroom.
Especially at the state level, the quality of jurisprudence is abysmal:
political nepotism;
The courts improve at the federal level, but the dependence on procedure increases. At that level the courts are beyond the comprehension of even intelligent, well-educated amateurs.
In the lower courts, intelligent well-educated amateurs are just objects for the amusement of lawyers and magistrates.
I wonder when you say, "The law is an ass." if you realize the real human price such a phrase engenders.
Paul
Posted by: Paul Donley | January 11, 2007 at 10:45 AM
Fascinating thoughts. Actually, the reality is, that the 'sudden deafening silence' - at least on my part - arose from a combination of three things: the Xmas break, the exigencies of moving cities (Melbourne to Brisbane), and, frankly, exhaustion. What you have to understand is that the pummelling debate on copyright law that you see on Weatherall's Law has been going on non-stop for the last three years. So while trying to hold down the regular academic job (teaching/research), I've been putting out that analysis basically in what passed for spare time. I needed a break.
I'm glad you don't think me a complete luddite. I try not to be. Yes, I'm a lawyer (a copyright lawyer at that) and I think like one. What I've been trying to do is bridge the gap - sometimes successfully, sometimes unsuccessfully - between the arcane world of copyright law, and the real world. explaining the meaning of some of the copyright laws and judgments that have been coming down. pointing out the problems. but also avoiding the 'sky is falling' prognostications, because they're just not accurate.
Is the copyright law, as amended, a nightmare? of course it is. that's what I and others have spent the last 12 months pointing out. Does it simply ignore reality? Of course it does. Will the reality-ignoring bits be, well ignored? Yes, by many. The law was an ass before. It is more of an ass now.
Will activity stop in Australia as a result? Some will. Smaller commercial operators are in trouble because of the government bias to protect non-commercial operators but catch 'pirates' with overbroad laws that catch everyone.
But is everyone liable for linking, meaning that everyone should be excluding Australians from viewing their websites? No, I don't think so, for reasons I've outlined in my response to your comment on LawFont.
Posted by: Kim Weatherall | January 09, 2007 at 10:25 PM