And it is probably a good thing my first draft of this comment is lost in the ether somewhere because of an accidental stomp on my keyboard.

‘Overbroad’ is an odd term for a law. I would say ‘obscure’, or ‘ephemeral’ – or simply that these laws are a mechanism for abuse which remove the concept of equal protection under the law. These laws read like a codification of the questions to be discussed and resolved.
I read your submission, and was most interested in the hypotheticals in the Appendix.

How does anyone expect to avoid corruption and abuse under the definitions of this system?

Australia sought to become a leader in copyright law. Where is the considerations of the new business models that are forming, irresistably, across the world?
These laws look backwards, not forwards. This is a dull light into the dim past; not a beacon to guide the future – or even to illuminate the present.

If there is any visage that can be drawn from this hodpodge of opportunity, it is the dark image of the corporate state.
- police and government as for-profit enterprises;
- corporate employees (MIDI or AFACT)as agents for prosecution;
- discretion so broad as to legalize political/corporate policy;
- discretion which is defined to be used as harassment, not enforcement;
- laws so vague as to be impossible for anyone to interpret reasonably.

I find these laws saddening, and frightening.

Paul

Under state laws (eg, parking fines, speeding tickets), if you don’t pay, the matter automatically goes to court – where you have to defend yourself, OR of course, the matter might be dismissed.

Under Commonwealth law, if you don’t pay, the prosecutors have to make a decision whether they want to prosecute. That’s just the way it works (I think it’s for constitutional reasons, although I’m not an expert on that).

That means you could have a situation where:
- the police officer issues, say, 10 infringement notices to a guy at a market. That adds up to a $13,200 fine (as I said, i don’t think that would happen, but it can on the face of the law, so let’s assume it does);
- the guy doesn’t pay
- at that point, the prosecutor (state or cth) has to decide whether to prosecute. They might choose to prosecute, at that point, for 10 criminal acts, or for 1, or for 100, or put evidence of the whole haul and charge a representative number of offences. Or they might choose not to prosecute.

I’ve argued, on multiple occasions, that the existence of overbroad laws is a problem, because of the discretion it confers and the problems of consistency that entails. Refer to my submission on the Infringement Notice Guidelines on this point.

I haven’t been reading LawFont for a while, and I’m afraid I owe you a retraction. After posting that Comment, I subscribed to LawFont through my Bloglines account, then caught up on my reading.

We don’t share your faith in the application of fines, however – even if it is more on political timing and expediency. The fact that those fines exist is the issue.
They shouldn’t exist, simply. Even if the legislature seems to be skittering and backtracking itself to provide ameliorating circumstances, sooner or later someone will find it expedient to issue those tickets; and the law provides a mechanism of far too easy abuse.
I can’t avoid the sense that these fines will be used to intimidate and quash entrepreneurship on the Internet – further controlling the free flow of information to the wider Australian public.

I do not see the reasoning behind 6 above.

6. If a person does not pay an infringement notice, the matter is not automatically put through the courts. The prosecuting authorities would have to made the decision to prosecute. Again, I doubt any prosecutor would prosecute an individual file-sharer for so many offences that you would be getting into the realm of the Jammie Thomas verdict. I base this view on the fact that the fines have not, historically, been imposed in copyright matters at that level except for actual commercial activities.

Once an issue has the force of law – meaning it is enforceable by the police and the courts – my understanding is that it has to be prosecuted. Otherwise, what is the point of criminalizing any action?
If the law is to be applied equally, according to the letter of the law, then how can it be said that an interpretation of the spirit(?) of the law will prevent prosecution?

If a person is issued an infringement notice including a bail amount, they have two choices: 1) Pay the bail and take the conviction on their record; or, 2) challenge the ticket in court at their own expense.
I don’t see anywhere in these laws that provide for other recourse?

The idea that the onus of the Jammie Thomas decision will prevent prosecution is as disturbing as the fact of the result of that civil action. Either the legislature will rescind this part of the revisions, or it should be applied.

Is this somehow dependent upon Judicial Discretion?
My understanding of Judicial Discretion is it is applied after the charges have been filed. It should not ever influence the application of the law, or contradict the black letter of the law, ideally.
There are already too many examples in Australian jurisprudence where Judicial Discretion apparently is too influenced by the political; and where Judicial Discretion can be seen to reverse both the spirit and letter of the law.

Paul

1. I dealt with the idea of copyright owners suing individuals because that is what was threatened, and that was what happened in the United States. There is only so much one can deal with at once;
2. Australia did introduce, last year, provision for copyright ‘infringement notices’ – that is, on the spot fines. It was, of course, a move I actively opposed.
3. Australia has only recently drafted guidelines on the use of those powers; a comment period on the draft finished in October. The guidelines will not be further actioned until a new government is in place, because the government is now in caretaker mode. I doubt there will be any attempt to issue infringement notices until the guidelines are finalised;
4. The fines that can be imposed via infringement notice (ticket) are 20% of the full fines for the offence- that is, $1320 per offence, not $6,600;
5. A police officer would have a discretion how many infringement notices to issue under the draft guidelines. I am extremely doubtful any police officer would issue much more than one notice to an individual, at least initially. It would draw far too much attention to these powers. Of course, I could be wrong. Many of the comments on the draft guidelines that I am aware of sought numerical limits or guides on the number of notices that can be issued simultaneously.
6. If a person does not pay an infringement notice, the matter is not automatically put through the courts. The prosecuting authorities would have to made the decision to prosecute. Again, I doubt any prosecutor would prosecute an individual file-sharer for so many offences that you would be getting into the realm of the Jammie Thomas verdict. I base this view on the fact that the fines have not, historically, been imposed in copyright matters at that level except for actual commercial activities.

These fines can be imposed by as simple an action as a policeman writing a ticket, and can only be defended in a criminal court.
Doing the sums, 24 songs at $6600 is $158,400.00. While that figure is technically not as high as $220,000, it is still in the oxygen-starved region of the financial atmosphere for most consumers.
And because of the mechanism of imposing these fines, there is little reason to not expect a greater number of charges. — There is little practical reason the woman could not have been charged with 1709 infractions under Australian law. (It might have taken a few weeks to write out that many tickets!)
She would have been forced to defend every alleged infraction individually.
If 24, or 1709, infractions does not define a ‘pirate’ as opposed to an ‘individual’, where it the cutoff line drawn?

What must sadden anyone concerned with fairness under the law is the overt recognition of political expediency influencing the application of the letter of the law — without any lament.
Applying the law only when it will not affect an election is a definition of corruption, not fairness.

Constitutionally, – forgive the metaphor – I think the concept of holding ISPs responsible for the actions of their clients in such a poorly defined and applied area of the law is bad law from the perspective of a body of law.
Law must change in response to the realities of a society and technology. Ideally, wisdom would guide such changes. In reality, the law usually trails the realities of a society and is at odds with the will and the direction societies mature.
There isn’t much to defend the arcane results of the Australian Copyright law commission; even if the financial support is there.

PD

I just wonder what the role of Telstra is in all this. They are a huge ISP and increasingly providing online content (for a fee) but still partly owned by a government that is clearly on the side of the MIPI/AFACT.

Kim