News items like this make me sad. Reading the callous comments here (from people far more privileged than the convict) is even sadder. This and the misguided porn raid that was covered 2 days ago... and these are the ones that appear in HN. How many such injustices happen every day?
I think law schools should have mandatory "Internet Technology & Law" classes. I used to think that the judges in cases like music piracy were just dishonest and in bed with RIAA. Now, I understand the situation is even worse: they are totally clueless about basic technology. And, obviously, they are not intelligent enough to have a health curiosity and learn about these matters (the US Supreme Court judges, for example, have demonstrated that they do this).
I think law schools should have mandatory "Internet Technology & Law" classes.
I have no reason to believe that that interesting suggestion would help solve the problem you identify. My basis for saying this is that I attended a law school in the United States, where as far as I know all law students have to take a course in United States constitutional law to obtain their degrees, and yet I graduated in a class that included graduates who acknowledged to me that they had never, ever read the entire United States Constitution (which is only a few thousand words long). Making a course a required course does not seem to guarantee that students will learn the expected knowledge to be gained from the course. Isn't the same result found in university computer science courses?
Do you think people in the legal system will necessary make the case decisions you desire if they become more familiar with your preferred subset of industry knowledge? That's the nub of the issue here. The thread is a complaint about a judicial decision. The one thing judges become practiced in doing is evaluating which parties to a case are b___s____ing and which parties are being straight with the court and law-abiding in their actions outside court. A trial judge's judgment can be reversed by an appellate court if the appellate court determines that the trial judge misapplied the law to the case. But it is a rare circumstance when an appellate court reverses any finding of fact by a trial judge, because trial judges see the witnesses, review all the evidence submitted by all parties to the case, and hear motions from all parties about evidence should be admitted.
In general, I think that most young people who attend law school are more knowledgeable about the law after attending than before. (I cannot say the same with confidence about young people who attend colleges of education with respect to teaching.) But as someone with a legal background, some of the statements I see here about why the Australian judge's decision was an outrage are not convincing to me. Are you willing to consider the possibility that if all readers of HN became much more knowledgeable about the law, they might perhaps disagree with the dollar amount of the judgment, but support the finding of liability in the case?
Interesting. You're right, it happens in all vocations, students retention of material varies in direct proportion to the perceived importance of the topic. Not many people will work on constitutional law (not much money there, I guess); however, just by such reasoning the Internet Law course should be a hit, because cases involving technology are skyrocketing and will only increase.
Hmm, it seems Stanford Law school has tons of courses in 2nd/3rd year dealing with this, e.g. http://www.law.stanford.edu/program/courses/details/481/Comm.... I guess other law schools have it, too. So maybe we just have to wait until the tech savvy judges filter through the system.
So maybe we just have to wait until the tech savvy judges filter through the system.
By which point, probably about a generation from now, some new issue will have come up that our once-savvy judges are now clueless about. Serious question: is there any way to solve the insane round trip ping times between law and technology?
I don't understand your argument, because you've buried it under multiple layers of emotional appeal. Instead of passing judgement on the commenters on this thread, I think you'd be more persuasive if you started by composing a sharp argument for how the judgement here was "technically clueless". You should be prepared for people to rebut that argument.
Fair enough, "law is reason, free from passion" and it should be, so let me gauge back the emotion and analyze the sentence more rationally!
1) I am not trained in law in general, or Australian penal code in particular, but I don't have to be: There are some legal decisions that you just know are wrong, even though you may not be a legal expert, e.g. cutting off the right arm for theft (in sharia law), death penalty (exercised in Singapore and other countries) and death penalty in general, prosecuting minors for texting their own revealing photos, etc. Nassim Nicholas says in The Bed of Procrustes "My biggest problem with modernity may lie in the growing separation of the ethical and the legal." I feel this to be the case with this verdict, i.e. the law has been applied to the letter, without regard to the particular circumstance.
2) The "technical cluelessness" of the judge comes about from his prima facie acceptance of the charges applied to the usage. Aurora was billed $193,187.43 by the provider Telstra for data transfer between 19 November 2009 to 19 February 2010, approximately $64K a month. It is stated (http://www.supremecourt.tas.gov.au/cops/monks_k_m) that she has downloaded movies among other Internet activities (interesting that they didn't bring in piracy charges for the movies), the exact number of movies or the amount of data downloaded is not stated (this is one question the judge should have asked). The conviction is presented as "she has downloaded $200K worth of data, which is erroneous, this is what Aurora was billed. This is akin to RIAA suing for $9K per shared song (http://www.wired.com/listening_post/2007/12/us-department-o/), this doesn't mean that a song is "worth" that much. I am assuming that the 3G account for this SIM card is sporadically used for a high amount per megabyte. So what they did is to charge all Monks' usage using that rate. The judge could have investigated the amount of data usage and based his conviction on fair market value of that.
3) Now for the special circumstances, perhaps the more "emotional" part. As the judge describes
"You are 33 years old. You have one conviction for stealing in 2002. I accept it was probably a relatively minor matter because it was dealt with by way of a fine. Your upbringing was unstable in the extreme. You lived in the streets for most of your teenage years and became involved in drinking alcohol and drug taking. You have been diagnosed with depression and bi-polar disorder. You are socially isolated and spend long periods at home alone and accessing the Internet. You have no family support being largely estranged from parents and siblings. You are in receipt of a disability pension. You have incurred debts and have difficulty managing money. It is doubtful that you will ever repay the money stolen by your use of the card."
Not much more need to be said.
4) Here's the judge's main reasoning:
"That must operate to demonstrate to you that you cannot repeat this type of offending but also to demonstrate to others that, even though the initial theft of the card may not have been yours, your taking advantage of that theft to the extent you did will not go unpunished. I am conscious that you live in rental accommodation and that you may lose that if jailed. However, there is no choice in my view other than to impose a custodial sentence. However to recognize the mitigating factors and your prospects of rehabilitation with support, that will be partly suspended."
So, although he sympathizes with Monks' situation, he want to make an example out of her. He mentions that Monks will probably lose her rental accommodation if jailed. It is clear that she is incapable of paying back the compensation levy of $150 (will this bring additional fines?), let alone the $193K. If they are not going to get their money back, what good is the fine? It is clear that this is a message to everybody else.
5) What riled me in this case is that everybody is so sympathetic with RIAA cases, but when it comes to this case, which, in effect, is pretty much the same, people suddenly become strict law enforcers.
Intelligence is hard to define but I think the biggest component is a healthy curiosity for everything. If topic is related to your job this counts as double. Seeing judges not having a grasp of basic knowledge related to the Internet, when there are so many resources they can get information is inexcusable.
Judges basically rely on the trial lawyers to do all the research and package up all the information needed. Being able to detect BS in a description of the inner working of the internet or an ISP probably requires more background reading than that.
But at least some of the blame probably goes to the lawyers involved.
This sounds like the basis of a good argument for switching to an inquisitorial legal system (instead of an adversarial one). I find it unfortunate that a defendant has to be aware of and actively pursue every option for defense, and that "fact" within a courtroom differs from "fact" outside the courtroom. This is especially troubling because of the highly asymmetrical nature of the legal encounters the average person may have in his or her lifetime (e.g. corporation vs. person, government vs. person).
It's quite possible she got some useless lawyer representing her through legal aide. So a) they may not be smart enough to think about questioning the absurdity of the $200k b) they may not even care.
I think law schools should have mandatory "Internet Technology & Law" classes. I used to think that the judges in cases like music piracy were just dishonest and in bed with RIAA. Now, I understand the situation is even worse: they are totally clueless about basic technology. And, obviously, they are not intelligent enough to have a health curiosity and learn about these matters (the US Supreme Court judges, for example, have demonstrated that they do this).