High Court rages against the sea

I really wish that the music industry -- and old men who sit as judges in courts -- would use a fraction of the energy spent mustering up righteous outrage about 'the internet' and 'file-sharing theft' in coming up with new commercial music models.

Take Mr Justice Peter Charleton. He's an old man. He's a High Court judge. And he told the court last week that the internet "was simply a means of communication". So, right off the bat, you know that this is an old man with a limited grasp of the issue.

Here's an extract from the Irish Times' coverage of the judge's speech (where he ruled in favour of cutting off internet subscribers' connections, based on Eircom's Three Strikes principle). I've bracketed some original copy and replaced it with a word that transforms it into a piece against tape-copying. The legal principle is exactly the same as internet file-sharing. See how it reads.

Since the early days of [the internet] home-taping, copyright material was [placed on the world wide web] copied by those with no entitlement to share it and [downloaded] copied by others who would normally have expected to pay for it, he said.

Younger people were now so much in the habit of [downloading] taping copyright material they appeared to believe they were entitled to have for free what is not theirs, he added.

There was “a fundamental right” to copyright in Irish law existing since the time of Saint Colmcille who was often quoted for his aphorism: “to each cow its calf and to every book its copy”, he said.

“The right to be identified with and to reasonably exploit one’s own original creative endeavour I regard as a human right.”

The courts were required to supply, even in the absence of legislative intervention, appropriate remedies for the undermining of rights within the scheme of fundamental law the Constitution represents and were obliged to protect the rights of copyright owners from unjust attack.

The owners of copyright have the exclusive right to undertake or authorise others to make that work available to the public but that legal entitlement was being “flagrantly violated” by [peer to peer illegal downloading] tape-copying.

Comments

[Pidge]

I recently loaned a book which I bought (second-hand!) to a friend.

I had better get my affairs in order so.

[Hibernicus]

"There was “a fundamental right” to copyright in Irish law existing since the time of Saint Colmcille who was often quoted for his aphorism: “to each cow its calf and to every book its copy”, he said."

They get away with this ignorance in Judicial ruling now. Colm Cille was the one who made the illegal copy (The Cathach, one of the finest surviving examples of an Early Christian Irish art). The ruling was made by the last Pagan High King of Ireland. It was reversed after the Christian Kings under Colm put the Pagan ones to the sword at Cúl Dreimhne.

[SOM]

Awesome ^

[Gerard Cunningham]

I'd be wary of reading too much into Charleton's words, particularly when they're reported second-hand, even by as reliable a source as the Irish Times usually is on court judgements.

Charleton is well aware that whatever mythical judgement might have been delivered in Finian v Colmcille, it has no standing in Irish law. The brehon code was replaced with the common law in the early 1600s (the case of Tanistry, if you're interested). He's trolling you, having fun with a judgement he knows will annoy the geeks. Read the full jopinion. I suspect it still won't be to your liking, but it will reflect the law, not legend.

[Justin Mason]

Gerard, you honestly think a judge is "trolling" while delivering a ruling on an issue?! That'd be pretty damn unprofessional. Anyway, it's definitely not the impression I get on reading the judgement:

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/7e52f4a2660d8840802577070035082f?OpenDocument

As I blogged at http://taint.org/2010/04/20/213551a.html , this is what Colmcille really said:

“I contend,” saith Colmcille, “that the book of Finnen is none the worse for my copying it, and it is not right that the divine words in that book should perish, or that I or any other should be hindered from writing them or reading them or spreading them among the tribes. And further I declare that it was right for me to copy it, seeing there was profit to me from doing in this wise, and seeing it was my desire to give the profit thereof to all peoples, with no harm therefore to Finnen or his book.”

'Information wants to be free', how are ya.

[Gerard Cunningham]

@Justin: Yes, I do. Charleton has a very dry sense of humour. Read his judgement again, and sepparate the commentary from the law.

[Howard]

The first appeal will have this stupid law kicked into the dustbin when it and that old fart Justice Peter Charleton belong.

[Justin Mason]

Dry sense of humour or not, he still got it ass-backwards.

[Adrian]

Have to agree with Justin here.

That judgement is littered with assumptions and mistakes of varying degrees.

I can see the point he's making; and it's a defensible one. People should be paid for their work.

What is astonishing is that he rails so much against illegality online ("both civil and criminal") yet rarely calls for any actual state prosecutions. I mean, if a crime has occurred, why is he not calling on the Garda and the DPP to investigate?

Nope; instead he talks approvingingly of extra-judicial "sanctions" (which he calls "serious") to be meted out by a couple of private companies (Eircom and the music companies). Is this the future of law and order in Ireland? When will Group 4 be given the nod to start "limiting access" to certain neighbourhoods, based on complaints from certain inhabitants?

Nice direction we're heading in, here.