The Communications Alliance proposal: a kinder, gentler 3-strikes

The Communications Alliance has released its proposal for dealing with rightsholders' complaints about ISP's customers engaging in alleged copyright infringements over their networks. The basic structure of the proposal is to provide rightsholders and ISPs a clear way of dealing with allegations of copyright infringements. However, in effect it is another variation of a graduated response system, albeit a kinder, gentler three-strikes.
The key features of the model include:

• An independent panel for the assessment of alleged infringement and appeals;
• A system for accrediting rightsholders (including the systems they use for detecting alleged infringements);
• A system of notices with an emphasis on compliance and education (including specified time frames for alleged infringers to respond or amend their behaviour);
• A "reset period" when further infringement has not occurred for a specified timeframe;
• A system of discovery of an alleged infringer's details with a view to private legal enforcement by rightsholders (where compliance has not occurred); and
• A funding model

This proposal broadly reflects the comments of Emmet, J in Roadshow Films Pty Limited v iiNet Limited[2011] FCAFC 23 and the proposal put forward by iiNet [PDF] in the wake of the case.

Considering that the Australian Federation Against Copyright Theft (AFACT) rejected this proposal and have appealed to the High Court (HCA), it is unsurprising that rightsholders have rejected this model, instead continuing to push for models that curtail alleged infringer's right to the presumption of innocence and due process.

In addition to the possibility of a HCA win, rightsholders are also relying on a legislative response from the government who have indicated that they would prefer to hand that process over to vested interests in the ISP and content publishing industries rather than legislating in such a way that provides a balance between industry interests and the public interest.

In the current litigious environment, the Communications Alliance proposal is a relatively balanced approach to the issues that AFACT identified in its complaint while maintaining the interests of ISPs.

Fundamentally, the proposal does not address the issue of the over-regulation of copyright that has created the problem in the first place. As the Communications Alliance itself states:

"Australian consumers' ability to legally access this content in a timely and affordable manner does, however, vary significantly from sector to sector (eg; release of TV programs and movies in Australia can lag months behind US releases). This difficulty, combined with a proliferation of access technologies, such as file-sharing software, has reportedly seen a growth in the frequency of unauthorised access to online content and therefore copyright infringement."

With vested interests controlling government policy on copyright regulation (particularly through international treaties such as the Trans-pacific partnership), it is understandable that rightsholders would refuse to accept that their own actions contribute to online infringement. It is also not surprising that they would continue to push for unbalanced anti-consumer laws to maintain their business models.

To their credit, at least ISPs have made an attempt to balance some of the concerns that have been raised about graduated response systems. However, this proposal has been developed through the prism of ISP interests to avoid being held liable for infringement. The model itself is largely a reflection of the comments of a Federal Court judge ruling on a law that successive governments have largely allowed to be influenced by the interests that are advantaged by those laws.

It is the government's responsibility to legislate to balance the interests of all stakeholders. However, its irresponsible abrogation of its responsibilities to vested interests has resulted in the litigious environment that regularly ignores the interests of the citizens that the government is supposed to represent.

It is time that the market failure that has been created by the over-regulation of intellectual property is re-examined through the prism of efficient and effective regulation. This regulatory analysis ought balance the rights of rightsholders, ISPs and citizens to encourage a dynamic market sparking the innovation that the protection of intellectual property was supposed to achieve in the first place.

Perspectives on the death penalty

There has been justifiable outrage today at the state sanctioned killing of Troy Davis by the State of Georgia, particularly surrounding the strength of the case against him. People have been rightly outraged about the fact that a potentially innocent man has been put to death. There were significant questions surrounding the reliability of evidence (and how that evidence was gathered) that was adduced during trial including the lack of a murder weapon and the over-reliance on eyewitness testimony - some of which was recanted by those witnesses.

I want to juxtaposition this case with another - that of Lawrence Brewer. Lawrence Brewer was a white-supremacist  who was convicted of killing James Byrd Jr. by tying him to the back of his pickup and dragging him along an asphalt road. According to forensic evidence Byrd remained alive for some time during the dragging and was only finally killed when he hit a culvert which severed his arm and head. Police found 75 places along the road that contained Byrd's remains.

Brewer and his accomplices continued to drag Byrd's torso for another mile or so before dumping his body.

At trial, significant evidence was adduced that proved beyond reasonable doubt that Brewer and his accomplices were guilty. Brewer and one of his accomplices were sentenced to death (another accomplice was given life in prison). During his stay in gaol, Brewer never showed any remorse and even said that "he'd do it all again". Brewer was killed by the State on the same day as Troy Davis.

If you are against the death penalty you must accept that the outcome of Brewer's case is as much a tragedy as Davis', even though the differences in how we may view the guilt or innocence or moral culpability of each are stark. In both of these cases, regardless of the action, evidence, guilt or innocence; the outcome, that of State sanctioned killing, is wrong because it deprives us collectively of our humanity.

"A Hanging", an essay by George Orwell (poignantly published on the ABC's Drum today) captures the inhumanity of execution. It is this inhumanity that we must remember, even when confronted with the callous viciousness of Brewer's acts.

"It was about forty yards to the gallows. I watched the bare brown back of the prisoner marching in front of me. He walked clumsily with his bound arms, but quite steadily, with that bobbing gait of the Indian who never straightens his knees. At each step his muscles slid neatly into place, the lock of hair on his scalp danced up and down, his feet printed themselves on the wet gravel. And once, in spite of the men who gripped him by each shoulder, he stepped slightly aside to avoid a puddle on the path.

It is curious, but till that moment I had never realized what it means to destroy a healthy, conscious man. When I saw the prisoner step aside to avoid the puddle, I saw the mystery, the unspeakable wrongness, of cutting a life short when it is in full tide. This man was not dying, he was alive just as we were alive. All the organs of his body were working -- bowels digesting food, skin renewing itself, nails growing, tissues forming -- all toiling away in solemn foolery. His nails would still be growing when he stood on the drop, when he was falling through the air with a tenth of a second to live. His eyes saw the yellow gravel and the grey walls, and his brain still remembered, foresaw, reasoned -- reasoned even about puddles. He and we were a party of men walking together, seeing, hearing, feeling, understanding the same world; and in two minutes, with a sudden snap, one of us would be gone--one mind less, one world less."

Regardless of the actions of a person, they are still just that: a person. No different from you or I in their personhood.

The moral value of a person derives from their personhood, the fact that they are a person, not just a collective set of moral actions¹. It is why we rightly sanction those that try to use a victim's actions (whether they are immoral or even illegal) as an excuse for crimes against their person.

It is why we legally recognise that the body is not just mere property and has value above its economic worth - because the body is an intrinsic part of what makes us a person. To treat a person as an object that can be extinguished by the State diminishes the State's value of all people.

The execution of a person by what should be an extension of our collective humanity, the justice system, is a great wrong that diminishes us all. All persons have a moral value, it is why we view the interference with the person as a great moral (and legal)  wrong and why we should reject the death penalty as a barbaric penalty discarded to unenlightened times.

And we should reject the death penalty's effect on our own collective humanity, diminishing us and bringing us down collectively to the level of those which we seek to sanction. Regardless of the actions of the person, we must recognise each of us as a person. We are all part of humanity and we should rally against its diminution - the death penalty undermines our humanity in this way. The famous lines from poet John Donne in 1624 articulate it well:

No man is an Iland, intire of it selfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; It tolls for thee.

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¹ I understand that there are utilitarian arguments that refute the idea of intrinsic moral value as the utilitarian looks at the consequences of actions for their utility. However, many utilitarians are also against the death penalty because the general consequences to society reduce overall utility - its an argument and discussion for another article.

Parliament is not a court: abusing its privilege does not lead to just outcomes

Parliamentary privilege is one of the more powerful rights bestowed upon our parliament, and, unfortunately it is often abused. As an absolute defence against defamation (and other actions) it is a powerful tool that can be used by parliament to discuss issues of significant public importance without the fear of legal action against parliamentarians. However, its abuse by parliamentarians can lead to gross injustices and even undermine and damage the processes of the justice system.

Senator Xenophon's recent naming of a Catholic priest  in parliament for alleged sex crimes is one such abuse. The allegations are yet to be investigated by the police and the sole reason for naming the priest is the Catholic Church's refusal to stand the priest down. Sen. Xenophon had said that the Church had taken too long to respond to the serious allegations.

It may be true that the Church has not acted adequately to respond to these allegations and its actions in the recent past have highlighted its inability to deal with allegations of this kind. However, the naming of an accused in parliament before guilt has been proven will do little to encourage the Church to amend its processes with regard to dealing with allegations of sexual misconduct. In fact, it may make the Church less likely to be forthcoming if there is an overhanging threat of accused priests being named and publicised through the parliament.

Any accused person has a right to the presumption of innocence, regardless of the crime. Sen. Xenophon's abuse of the power of parliamentary privilege stands in direct contrast to this cornerstone of our justice system.

Sen. Xenophon's response to accusations by the chair of the Australian Catholic Justice Council, Bishop Saunders, that Xenophon's actions constitute a "stunt" that hasn't "done the cause of justice any good at all", has been to appeal to its popularity among the public. This is just an appeal to mob justice of the kind that is normally the purview of shock-jocks and tabloids, not the Commonwealth Parliament (although previous abuses of the privilege have similarly dragged it down to that level).


Sen. Xenophon's actions have done nothing to further the cause of victims of sexual abuse. The only outcome of this is to publicise an investigation into an accused person, even before they have been charged with an offence. It is possible that Sen. Xenophon may even have compromised the accused's ability to receive a fair trial and undermined the victim's ability to achieve justice through the courts. Xenophon's actions do nothing but undermine the justice system and the integrity of the parliament using the victims of abuse as a platform for a cynical exercise in self-promotion.

Fundamental institutions are cast aside in the pursuit of raw power

"THE presumption of innocence until proven guilty is a foundation of our democracy. There are investigations underway that need to be allowed to take place and resolved, and those resolutions will determine whether Parliament has a role to play in this matter.

It is a very dangerous precedent for Parliament to call a member to explain allegations made against them, before proper process and natural justice have reached their conclusions, as this would blur the line between our parliamentary and judicial systems."

Rob Oakeshott, MP (Ind)

The Craig Thompson scandal that has engulfed parliament this week has once again shown that the Liberals are prepared to do anything, including breaking political convention and undermining our system of justice, to gain power. It has been a raw and grubby affair, particularly since the scandal itself is so salacious.

The quote above from independent MP, Rob Oakeshott highlights the issues that seem to have been forgotten in the Opposition's headlong grab for power; that everyone, regardless of what they are alleged to have done, is entitled to a presumption of innocence and that it is the courts and not the parliament or the media that are the ultimate arbiters of innocence or guilt. However, the opposition is happy to cast aside all those principles in its relentless drive for power.

It is ironic that convention and tradition have been cast aside by the so-called conservatives, now fully re-casting themselves not as a conservative or even liberal party but a radical neo-con machine focused purely on the obtaining and holding of power at whatever cost.

And they say the ALP has lost its values.....

Cheap political points at the expense of the justice system

Once again the opposition are attacking and undermining the democratic institutions that underpin our society in another appeal for cheap votes. Liberal Senator Julian McGauran has used parliamentary privilege to launch and extraordinary attack on the Melbourne academic who provided expert witness testimony in the case of the man who threw his daughter of the Westgate bridge - R v Freeman [2011] VSC 139 (11 April 2011)

Sen. McGauran used the the parliament to attack Graham Burrows as "a psychiatrist of last resort and one who will sing whatever song the defence wants". Not only is this an appalling attack on Mr. Burrows but it is an attack which undermines our justice system itself. Expert witnesses need to be able to give their evidence in difficult cases and not have parliamentarians calling for them to lose their job.

Sen. McGauran fails to understand that the primary duty (see form 44A) of any expert witness is to the court and not to any particular side of the case - and it is up to the jury, not parliamentarians, to decide on the weight of that evidence. In this particular case, the jury did not agree with Mr. Burrows' evidence. This in no way determinative of the veracity or otherwise of Mr. Burrows evidence - the jury has decided that there was more evidential weight to the expert testimony of the prosecution (as well as other evidence adduced in the case) and it is beyond reasonable doubt that Mr. Freeman committed the crime. In essence the system appears to have worked as it should so it is difficult to see that Sen. McGauran's attack is anything other than an abuse of parliamentary privilege for the purpose of scoring the very cheapest of political points.

These cheap political points come at the expense of the integrity of the system itself. It undermines justice if an expert witness is second-guessing their evidence because they are afraid of being attacked in parliament. It undermines their fundamental duty to the court to provide their expert witness testimony if they curtail the way they present their evidence for fear of an attack on their reputation.

Members of the opposition seem to be happy to undermine fundamental societal institutions such as freedom of speech, freedom of religion and now the justice system itself. This pernicious grab for votes shows that the Liberal party is happy to appeal to the extremes of society to pursue its cynical attempts to gain power at the expense of the fundamental institutions of this country.