[LINK] Does copyright have a future? [WAS: iinet wins!!]

[Frank O'Connor]

OK Dave,

You put this whole thing back out in the public arena. I was quite 
happy to see it remain private - but this was your call.

I'd like you to remember that if what follows starts causing you some 
grief. On your head be it, Dave ...

At 11:58 AM +1100 on 10/2/10 you wrote:
>  > Yours is a real "my dick is bigger than yours" world, isn't it?
>No Frank, I'm just amused by your refusal to answer the question.

See that's where we differ Dave ... from my perspective I've answered 
the question ad infinitum, but your nitpicking, your myopic refusal 
to let the matter rest prevented you from seeing that we agreed on 
about 99% of things. To you the focus was whether legal action was 
viable as an enforcement option, and although I answered the question 
that evidence gathering and process were relatively simple, and that 
a cost benefit analysis had to be done, and that the industry had 
proved by its civil litigation in the US that it was quite willing to 
engage in said litigation across a wide range of instances against a 
large number of defendants

>
>  > Gathering evidence and instituting process is a relatively simple
>  > exercise ...
>In my experience, a case of any substance involves thousands of hours of
>work, even before a decision can be made as to whether there is a case
>at all. When I was in that field, there were some teams from which the
>prosecutors hated taking cases: they too often found faults which didn't
>show up until they were in court and ended up with egg on their faces.
>For cases of substance, effective legal process is far from simple. That
>said, legal process alone does not enforcement make.

Well from my experience:

1. 80-90% of civil actions are undefended and result in summary 
judgement. Even if they do go to trial, evidence is usually adduced 
by affidavit and not disputed anyway ... only the substance of the 
Statement of Claim is disputed - usually at law.
2. 70-80% of criminal actions for misdemeanors - the VAST MAJORITY of 
criminal actions - result in a guilty plea ... not least because many 
misdemeanors are specific offences (i.e. Dave, they don't require any 
mental element, mens rea of whatever you want to call it to be 
proved). The only reason the lawyers are involved in such cases are 
to plead mitigation - or in the Crown's case for a more substantial 
penaltt - in the sentencing/penalty phase.
3. Major crimes offer little inducement for a defendant to plead 
guilty - but most are not as tricky as people imagine to prosecute. 
If we had serious plea bargaining in this country more defendants 
might plead guilt of major crimes. Otherwise it's simply not in their 
interest.

Now I'd suggest that unless the litigation you were involved with 
involved a major crime, that thousands of hours of work was not 
required. I'd suggest that everybody had a lot of personnel, time and 
money on their hands (hey, this is the public service we're talking 
about here, right?), and that the work expanded to fill the time and 
expend the money and engage the personnel  in the age old way of the 
public service. I'd suggest that your counsel/barrister was either a 
careerist old woman (from AGS or the DPP), and/or had little actual 
litigation experience. Hell, I've seen cases involving public service 
prosecutions where the courts have been literally buried under 
so-called 'evidence', and 'representations' and the like to the 
extent that the sitting judiciary became so frustrated they actually 
publicly criticised the public service for the way in which they had 
conducted the case. (A few recent examples that hit the papers 
illustrate that this trend still continues in the public service ... 
when in doubt bury the court under so-called evidence, when only a 
few pages should do.)

>
>  > Costs are an issue,
>True; and not all costs are as obvious as those involved in litigation.

And the meaning of this, my Mental Giant, is?

>One of the worst for the industry lies in the loss of public support. As
>it stands, copyright has virtually no support among the general public.
>To most, it's irrelevant.

Idiot.

In cases of copyright violation the industry wants bad press. They 
want to be seen as the Ghengiz Khan of the litigation set. They need 
to be seen bankrupting small kiddies, throwing little old ladies out 
in the street, beating up on the frail and the ill, and generally 
being utter bastards.

I mean ... this is the whole point behind their legal action and 
enforcement, Dave.

Hasn't that sunk in yet?

>
>Whatever replaces copyright will need to address its shortcomings.
>Industry won't see it that way, of course. They'll want to tinker around
>the edges. I'm reminded of common business responses to the discovery
>that the horse they're riding is dead:
><http://www.lrdev.com/lr/cache/3c5905aa.html>.

Great you quote me yet another URL. Have you lost the ability to think, Dave?