Law versus the lynch mob [update 3]

Let me contrast objective law with a new law about to be foisted upon us.

First, here’s what objective law looks like:

All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it…

Further:

[Objective law] requires objective rules of evidence to establish that a crime has been committed and to prove who committed it, as well as objective rules to define punishments and enforcement procedures.

Contemplate those words “The retaliatory use of force requires objective rules of evidence to establish that a crime has been committed” while you read s92A of the Copyright Act, which on its present timetable will be passed into law in 11 days, 17 hours and fifty-four fifty-three minutes.

INTERNET SERVICE PROVIDER LIABILITY
92A
Internet service provider [sic] must have policy for terminating
accounts of repeat infringers
(1) An Internet service provider must adopt and reasonably implement
a policy that provides for termination, in appropriate circumstances,
of the account with that Internet service provider of a repeat infringer.
(2) In subsection (1), repeat infringer means a person who repeatedly
infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

What that means, says Matthew Holloway of the Creative Freedom Foundation, is Guilt by Association.

The … law reverses New Zealander's fundamental right to being presumed innocent until proven guilty, punishing internet users with disconnection based on accusations of copyright infringement without a trial and without evidence held up to court scrutiny.

The proposed law fails to adequately define “internet service provider.” (I’m a blogger; apparently that makes me an “internet service provider.”) It fails to protect people against false, frivolous or flawed accusations. (Matthew Holloway gives some examples here.) It ignores entirely the basic rules of evidence developed, with good reason, over many centuries. It confuses an accusation with a conviction.

It’s bad law.

My opposition to the Copyright Act is not due to its intent (which is to protect copyright) but because it confuses an accusation -- “He done it!” – with its opposite, i.e., : “evidence to establish that a crime has been committed.”

It is the difference between law and a lynch mob – with the lynch mob’s rope provided by poorly drafted, non-objective law.

I’m agin’ it.

NB: Contemplate this, from the Ayn Rand Lexicon, which describes the future under this law:

When men are caught in the trap of non-objective law, when their work, future and livelihood are at the mercy of a bureaucrat’s whim, when they have no way of knowing what unknown “influence” will crack down on them for which unspecified offense, fear becomes their basic motive, if they remain in the industry at all-and compromise, conformity, staleness, dullness, the dismal grayness of the middle-of-the-road are all that can be expected of them. Independent thinking does not submit to bureaucratic edicts, originality does not follow “public policies,” integrity does not petition for a license, heroism is not fostered by fear, creative genius is not summoned forth at the point of a gun.

Non-objective law is the most effective weapon of human enslavement: its victims become its enforcers and enslave themselves.

UPDATE 1: David Farrar has a guest column on the issue of S92A at Muriel Newman’s Centre for Political Research.

UPDATE 2: Russell Brown explains why your friends’ pictures are turning black all over Facebook, MySpace, Twitter. “You're seeing The Blackout, a netroots protest against Section 92(A) of the Copyright Act, which comes into force on February 28.”

And he identifies another ill of this law, if it were to come into effect: “It is not only that this law denies the accused any due process, it is that it stipulates a penalty that no court would impose in adjudicating a copyright complaint even if infringement were proven…”

UPDATE 3: Stephen Fry takes the protest international on his Twitter page. (For Americans: Stephen Fry was Hugh Laurie’s comedy partner back when Hugh still spoke English.)