Former Head Of Australian Music Industry's Anti-Piracy Efforts Calls For An Infringement Small Claims Court
from the ask-yourself-who-benefits-most...-and-who's-pushing-for-it dept
An interesting but mostly bad idea has reared its head again: a small claims court for copyright infringement. This time, it's an anti-piracy investigator (and former policeman) pushing the idea, springboarding off the ridiculous 33-month sentence meted out to Phillip Danks. (h/t to Techdirt reader jtomic)
Michael Speck, an independent Australian anti-piracy investigator and former policeman, said the sentence was fair but added the case showed that Australia needed a separate, specialised court that would make it less costly to prosecute those who downloaded or distributed copyright infringing material.It's always suspect when someone who makes their money fighting infringement calls for a small claims court to handle infringement. (You know, rather than the artists themselves...) While some creators would welcome the idea and find the lower barrier to entry (so to speak) better than the current system, the real reason for Speck to be pushing this is the increased number of infringement cases that could be processed. Win-win for those in the anti-piracy business, but of little real use to anyone else.
"It's high time that a specialist small claims tribunal be established to deal with low-level criminal and civil [copyright] infringements [in Australia]," Mr Speck, who was once the head of ARIA's music industry piracy investigations unit, said.
"The vast majority of victims of copyright infringement can't afford to go before a court in this country. It's incredibly expensive to prosecute a case and it's very easy to stifle a civil or criminal prosecution," he added.
For one thing, the notion of a small claims court undermines the argument that statutory damages are necessary to deter infringement. By definition, a small claims court wouldn't (or shouldn't) take on cases where these damages are being pursued. If faster, smaller cases can take a bite out infringement, then it's clear statutory damages vastly overvalue the copyrighted creations.
Second, proving infringement isn't nearly as simple as pursuing debt or making your neighbor pay for damage done to your vehicle when the tree he tried to cut down fell in your driveway. (Actually, the latter case is probably extremely complicated.) What it would encourage, however, is the filing of multiple suits in hopes of obtaining easy default judgements. There's also the question of how small, independent rights holders are going to determine guilty parties, something even well-heeled studios and labels have trouble doing.
This idea is seductive because it appears to offer quick, cheap resolutions in copyright owners' favor. But the reality will be far different. Because of what's required to unmask infringers, this system will end up being just another tool for major players to sue minor infringers. The artists at the bottom -- those who might see this as a panacea -- will still face an uphill battle when attempting to target infringers.
Speck points out that it's very easy to "stifle a civil or criminal prosecution." What makes him think that this will be less likely in small claims court? The only reason he would see this as a solution is if he feels it will be easier to push dubious cases past judges in these courts. If so, then small claims court will become a copyright troll haven, something that does very little to deter infringement and contributes greatly to the public's disenchantment with IP enforcement. If Speck is looking to see more grandmothers and 14-year-olds paying out for alleged infringement, small claims court is the way to go.
There are positives to this approach, but they hinge on the limitation (or removal) of statutory damages and built-in safeguards for the accused. Otherwise, this system will simply steamroll the unsuspecting along with the truly guilty.
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Filed Under: anti-piracy, australia, copyright, michael speck, small claims
Reader Comments
The First Word
“added the case showed that Australia needed a separate, specialised court that would make it less costly to prosecute those who downloaded or distributed copyright infringing material
The case in question he is referring to firstly was NOT an Australian case and was PURELY British based on British and NOT Australian legislation. In fact Copyright Legislation in criminality matters bares little resemblance to British law and has for quite some time.
"It's high time that a specialist small claims tribunal be established to deal with low-level criminal and civil [copyright] infringements [in Australia],"
As a former LEO Speck absolutely knows that there are no such things as 'low-level' (commonly called misdemeanors) anymore under Australian Criminal laws (neither Federally or State based). All criminal offenses are dealt with EXCLUSIVELY by criminal courts NO EXCEPTIONS. A small claims court which is based on a tribunal model and does away with certain aspects of evidential rules (ie: Hearsay) and also works on "Balance of probabilities" can no more be a trier of a criminal prosecution than a criminal court can of a civil tort. ie: NEVER the twain shall meet
Mr Speck, who was once the head of ARIA's music industry piracy investigations unit, said.
Draw your own conclusions of bias - I know myself and 25million other Australians have
"The vast majority of victims of copyright infringement can't afford to go before a court in this country. It's incredibly expensive to prosecute a case and it's very easy to stifle a civil or criminal prosecution," he added.
LOLOLOLOLOLOLOLOLOLOLOLOLOL BULLSHIT!
There are two problems with the above conflating statement of Beck's. Firstly that an alleged victim has to pay for prosecutorial costs in a criminal case - They don't. The State pays instead and this is the actual point of criminal law and why such things as discretion for de minimus acts are allowed to both Prosecutors, LEO's and Courts!
Secondly, if a person has been damaged by an alleged breach of their copyright they can bring the matter to CIVIL claims courts already, prove upon balance that it occurred and then if appropriate DAMAGES and costs will be awarded by the court TO THE LOSING SIDE!
Speck seems to think, and from dealings with him in the past this is very prevalent, that Australia is living in some parts of America where Statutory Damages for copyright exist - THEY DON'T IN AUSTRALIA, Where there are exorbitant costs for litigation - THERE ISN'T Due to our tort reform systems, where procedural fairness and natural justice are not the foundation stones of the legal system, and where downloading of copyright material unless in commercial quantities and for commercial purposes is illegal - it's only unlawful (ie: civil ONLY NOT Criminal)
As for a small claims court, no judges are involved and normally its at most a Magistrate (solicitor who has been chosen by legal peers to be a trier of 'facts') though normally a Register (has no law degree and is head of the clerks). Oh and it's a 'non adversarial' system where solicitors/attorneys are not normally used on EITHER side in fact are frowned upon.
As for the ease at which Speck assumes its "easy to stifle a civil or criminal prosecution" - this makes me pause and wonder how much he has been watching Underbelly, LA Law and other fantasies or has had, or allowed, corrupt input/influence into his own criminal cases as an LEO.
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How about a trade?
So gone would be the thousand dollar settlements for a single song, instead they'd be looking at a hundred or so at most. I don't think you can sue multiple people in small claims court either, so it would be one case for one accused, no more lumping a couple hundred defendants in a single filing to save costs.
And finally, if the court finds the defendant innocent, those who filed the accusation are forced to pay the legal fees/lost wages of the accused.
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I offer a better solution , an Arena, Copyright holder vs Possible Infringer , Winner takes all.
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Re:
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Fair is fair...
Anyone. Any damages.
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Should be written,
"The vast majority of people accused of copyright infringement can't afford to go before a court in this country. It's incredibly expensive to defend yourself against these claims."
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Re: How about a trade?
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No more $150,000 per copy claims. No more prison sentences. If your infringement claim was for 100 copies of a $0.99 song, the maximum damages awarded would be $99.00, not $14,580,000. No more grouping multiple defendants into one big lawsuit to make filing more efficient for prosecution and more expensive to defend.
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Re: How about a trade?
That likely means that there are a whole lot of marginally employed/incompetent/diploma_mill lawyers looking for quick easy money!
I think your scheme would be an answer to their prayers - a way to screw cash out of a whole lot of little people in increments that will add up when they petition for (and receive) "more efficient process" improvements.
I.E. If obviously guilty - 5 minutes per case, standard $300 minimum judgement.
Remember, the people making the rules are often marginally competent lawyers.
The sheer mass of people in the US with a law degree almost guarantees that the average lawyer will be below the competence median for Lawyers, and likely well below the median for competence in the general public.
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Re: Re: How about a trade?
http://www.tentmaker.org/Quotes/lawyers-per-capita.html
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added the case showed that Australia needed a separate, specialised court that would make it less costly to prosecute those who downloaded or distributed copyright infringing material
The case in question he is referring to firstly was NOT an Australian case and was PURELY British based on British and NOT Australian legislation. In fact Copyright Legislation in criminality matters bares little resemblance to British law and has for quite some time.
"It's high time that a specialist small claims tribunal be established to deal with low-level criminal and civil [copyright] infringements [in Australia],"
As a former LEO Speck absolutely knows that there are no such things as 'low-level' (commonly called misdemeanors) anymore under Australian Criminal laws (neither Federally or State based). All criminal offenses are dealt with EXCLUSIVELY by criminal courts NO EXCEPTIONS. A small claims court which is based on a tribunal model and does away with certain aspects of evidential rules (ie: Hearsay) and also works on "Balance of probabilities" can no more be a trier of a criminal prosecution than a criminal court can of a civil tort. ie: NEVER the twain shall meet
Mr Speck, who was once the head of ARIA's music industry piracy investigations unit, said.
Draw your own conclusions of bias - I know myself and 25million other Australians have
"The vast majority of victims of copyright infringement can't afford to go before a court in this country. It's incredibly expensive to prosecute a case and it's very easy to stifle a civil or criminal prosecution," he added.
LOLOLOLOLOLOLOLOLOLOLOLOLOL BULLSHIT!
There are two problems with the above conflating statement of Beck's. Firstly that an alleged victim has to pay for prosecutorial costs in a criminal case - They don't. The State pays instead and this is the actual point of criminal law and why such things as discretion for de minimus acts are allowed to both Prosecutors, LEO's and Courts!
Secondly, if a person has been damaged by an alleged breach of their copyright they can bring the matter to CIVIL claims courts already, prove upon balance that it occurred and then if appropriate DAMAGES and costs will be awarded by the court TO THE LOSING SIDE!
Speck seems to think, and from dealings with him in the past this is very prevalent, that Australia is living in some parts of America where Statutory Damages for copyright exist - THEY DON'T IN AUSTRALIA, Where there are exorbitant costs for litigation - THERE ISN'T Due to our tort reform systems, where procedural fairness and natural justice are not the foundation stones of the legal system, and where downloading of copyright material unless in commercial quantities and for commercial purposes is illegal - it's only unlawful (ie: civil ONLY NOT Criminal)
As for a small claims court, no judges are involved and normally its at most a Magistrate (solicitor who has been chosen by legal peers to be a trier of 'facts') though normally a Register (has no law degree and is head of the clerks). Oh and it's a 'non adversarial' system where solicitors/attorneys are not normally used on EITHER side in fact are frowned upon.
As for the ease at which Speck assumes its "easy to stifle a civil or criminal prosecution" - this makes me pause and wonder how much he has been watching Underbelly, LA Law and other fantasies or has had, or allowed, corrupt input/influence into his own criminal cases as an LEO.
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Re: Fair is fair...
This is why the RIAA/MPAA/ARIA's of the world cannot stand democratic justice systems
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Re: Re: How about a trade?
This is around 1:400 though it's actually more since that is looking at the full 60K as practicing when in fact solicitors/barristers who are actually registered to practice law in each state is way way less. A lot of CEO's hold law degrees, even some Digital Forensic consultants (*waves*) and are too cynical to practice and would be found in contempt too much :)
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I Wonder if any lets say American entertaiment industries are behind it?
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Re: Re: How about a trade?
By definition the average lawyer will be exactly on the competance median.
However the point that the majority of lawyers working in such a court would be below average is probably correct.
Having said that, in the UK small claims courts lawyers fees are not recoverable by either side and hence most people will do without them, given that the maximum settlement is lower than what most lawyers would charge.
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Ok,
Small claims court: still too egregious for Techdirt readers.
Keep the lulz comin, pirate dbags.
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hahahaha
"you caught me stealing, so I only owe you the sticker price, right?" Gotta love pirate math
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Then why should people owe you money on your say so?
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Re: How about a trade?
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Re: Re:
"You've been found guilty of downloading a CD's worth of music($15), and are therefor ordered to pay twice it's cost($30) as a penalty."
That's how actual theft is treated in the courts, sound like something you lot would accept, or would you be hollering up a storm about how 'pathetically low' the fine amounts are?
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Who benefits from a small claims court?
I'm not aware of it having been inundated with poorly-found cases of a trollish persuasion. Parties bear their own costs, so it makes it cheaper to defend against baseless accusations - or for smaller firms to get damages (up to £10k) against genuine infringers. UK doesn't have statutory damages so awards are based on actual harm; one can in principle get additional damages if there is blatant and knowing infringement.
The court hears only civil cases, I should add. If there are complex legal arguments the case won't be allowed on the small claims track.
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The way I see it this would be giving Michael Speck from the article exactly what he asked for, even if it's not what he wanted.
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