Pirate bay fruits get year in jail

[Barrister]

For whatever its worth, the Canadian Supreme Court has held that the "harm principle" is not a part of the criminal law.
The government need not show that anyone is harmed in order to make something illegal.

http://www.canlii.org/en/bc/bcca/doc/2000/2000bcca335/2000bcca335.html

I conclude that on the basis of all of these sources – common law, Law Reform Commissions, the federalism cases, Charter litigation – that the "harm principle" is indeed a principle of fundamental justice within the meaning of s. 7. It is a legal principle and it is concise. Moreover, there is a consensus among reasonable people that it is vital to our system of justice. Indeed, I think that it is common sense that you don't go to jail unless there is a potential that your activities will cause harm to others.

What did I misread in that opinion?

:palmslap:

You misread nothing.  I posted the Court of Appeal decision, which was overturned by the Supreme Court of Canada.

Even if the "harm principle" relied upon by the accused could be characterized as a legal principle, it does not meet the other requirements.  First, there is no sufficient consensus that the harm principle is vital or fundamental to our societal notion of criminal justice.  While the presence of harm to others may justify legislative action under the criminal law power, the absence of proven harm does not create an unqualified s. 7 barrier to legislative action.  Nor is there any consensus that the distinction between harm to others and harm to self is of controlling importance.  Finally, the harm principle is not a manageable standard against which to measure deprivation of life, liberty or security of the person.

While the "harm principle" is not a principle of fundamental justice, the state nevertheless has an interest in the avoidance of harm to those subject to its laws which may justify legislative action.  Harm need not be shown to the court's satisfaction to be "serious and substantial" before Parliament can impose a prohibition.  Once it is demonstrated, as it has been here, that the harm is not de minimis, or not "insignificant or trivial", the precise weighing and calculation of the nature and extent of the harm is Parliament's job.

http://www.canlii.org/en/ca/scc/doc/2003/2003scc74/2003scc74.html

[The Minsky Moment]

Just to be clear, there should be no question that an IP holder is harmed by violations of the IP rights in many cases.  If anyone can publish my work without compensating me, the commercial value of my work diminishes to near zero.  That is plainly a harm.

[ulmont]

Just to be clear, there should be no question that an IP holder is harmed by violations of the IP rights in many cases.  If anyone can publish my work without compensating me, the commercial value of my work diminishes to near zero.  That is plainly a harm.

This argument presupposes the existence of IP rights.

Absent IP rights, I copy your CD, you still have your music.
Absent personal property rights, I take away your ball, now you have no ball.

Fundamental difference.

[ulmont]

I think it is you that are backtracking here.  You concede that your argument is based off consumption patterns, and further concede that my examples track the same consumption pattern.  Yet you want to discard them as "tangential".  If consumption pattern is the key distinction, then these examples are not tangential.

Your examples are tangential in that they do not reflect the common consumption pattern for real or personal property.  Using an outlier to justify the rule in the common case doesn't work.

[The Minsky Moment]

This argument presupposes the existence of IP rights.

Absent IP rights, I copy your CD, you still have your music.
Absent personal property rights, I take away your ball

Absent personal property rights, it's not "your" ball.  The argument presupposes the existence of personal property rights. 

Your examples are tangential in that they do not reflect the common consumption pattern for real or personal property.

They do reflect the common consumption pattern for real property.  And they refect a very common consumption pattern for non-real property - namely property which is distributed by subscription or "hook up", or through ticketing or charged access schemes.

[ulmont]

This argument presupposes the existence of IP rights.

Absent IP rights, I copy your CD, you still have your music.
Absent personal property rights, I take away your ball

Absent personal property rights, it's not "your" ball.  The argument presupposes the existence of personal property rights. 

No it doesn't.  If I take away "the ball you had previously been playing with," (previously referred to as "your ball") you don't have it.  The same is not true for copies of digital works.

[The Minsky Moment]

No it doesn't.  If I take away "the ball you had previously been playing with," (previously referred to as "your ball") you don't have it.

But I do "have it", even if it is not immediately in my possession.

In a social sytem where property is communally held, possessory rights aren't zero sum in the way you are suggesting.  In such a system, if someone takes a saw that I had previously used and chops down some trees for firewood, or builds a dwelling, I haven't lost a saw.  On the contrary, I have gained the communal right to use the firewood to cook my meals, or to use the shelter of the dwelling.

[dps]

More like a practical approach to determining how to enforce within a particular cultural context.

From a descriptive rather than a prescriptive approach, a right that almost no one feels obligated to honor a) isn't much of one and b) perhaps shouldn't exist at all.

So from 1876 to 1964, when almost no one felt oligated to honor the voting rights of blacks in the south, those blacks shouldn't have had the right to vote in the first place?

[The Brain]

miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail. This obviously doesn't say anything about whether they should exist or not.

Are some laws not different from other laws? Is not a law against jaywalking different from a law against murder? To say that all laws are the same, on the other hand, that is a remarkable way to fail.

"Fundamentally different" and "different" are, appropriately enough, different.

[Pat]

miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail. This obviously doesn't say anything about whether they should exist or not.

Are some laws not different from other laws? Is not a law against jaywalking different from a law against murder? To say that all laws are the same, on the other hand, that is a remarkable way to fail.

"Fundamentally different" and "different" are, appropriately enough, different.

That is a distinction without a difference. Stop making a fool of yourself.

[The Brain]

miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail. This obviously doesn't say anything about whether they should exist or not.

Are some laws not different from other laws? Is not a law against jaywalking different from a law against murder? To say that all laws are the same, on the other hand, that is a remarkable way to fail.

"Fundamentally different" and "different" are, appropriately enough, different.

That is a distinction without a difference. Stop making a fool of yourself.

[Pat]

[Martinus]

According to Polish press, the defense is pushing for a mistrial declaration since the judge in the first instance court was a member of the Swedish Association for Copyright and the Swedish Association for the Protection of Industrial Property, and didn't inform the parties of this. Both organizations acted as amicis curiae during the trial, supporting the prosecution.

[DontSayBanana]

According to Polish press, the defense is pushing for a mistrial declaration since the judge in the first instance court was a member of the Swedish Association for Copyright and the Swedish Association for the Protection of Industrial Property, and didn't inform the parties of this. Both organizations acted as amicis curiae during the trial, supporting the prosecution.

Ah, there's the missing piece of the puzzle; I was wondering but couldn't find whether those organizations were involved in the prosecution. I saw that they weren't litigants, but I didn't think to check for amicus curiae involvement.

As the amici curiae could have presented presupposed opinions, then as a representative of those organizations, that judge's impartiality was compromised.

The really dumb part is that evidence presented by amici curiae has to be reviewed and voluntarily admitted by the court-- either the judge concealed his involvement, which looks really bad, or else they were so hasty in accepting that evidence that they overlooked the potential conflict of interests, which also looks really bad.