Legal Advice

I am David Mytton

In August last year I set up this to allow me to blog under a new persona about law without worrying about discussing topics that might offend the readers of my main blog (who are mostly my customers). I created a new identity called Wilbur Parry, based on the character Will Parry from the His Dark Materials Trilogy (Will is also the name of two of my best friends, but that’s not really relevant).

One true aspect of my identity is that I was a law student. I have since decided to take a gap year and shall be restarting my course at a different university (Birmingham) this year.

I wrote a fair number of posts on the site and I managed to generate a decent number of visits (1,820 visitors and 3,063 pageviews). It got listed in the Blawg Review – #78 was hosted by Human Law – and is linked to from quite a few legal blogs.

That experiment is now over. I have just finished merging most of the posts into mytton.net and you can read them under the Law category.

Thanks for reading!

…meanwhile, 95 years later

When you create something in artistic format such as a piece of writing or music, you automatically get protection to use that creation how you wish without anyone necessarily being able to use it without your permission. This protection is known as copyright and allows the author to exploit their hard work and try and make money from it. The format that you create the piece of work determines how long the protection lasts for – it is not forever – and this duration has been at the heart of some quite strong discussion recently.

Looking specifically at music, to quote the Patent Office website:

Copyright exists in your original music composition or score for your life plus 70 years from the end of the year of your death. The same length of time applies for the lyrics, whereas the sound recording only lasts for 50 years from the end of the year in which it was made or, if published in this time, 50 years from the end of the year of publication. If not published during that 50 year period, but it is played in public or communicated to the public during that period, then copyright will last for 50 years from when this happens.

A socialist might ask why is there a duration at all whilst a capitalist would ask why is it not longer? The two extremes, whilst not really a fair description of the representatives of the two sides of the arguement, do allow some form of reasoning to be applied to a) why there is a duration at all and b) why the number of years is set as it is.

Let’s look at the two points of view:

The extreme socialist in my analogy above believes that everyone is equal and everything should be owned by the state. Ignoring the realities of communism, this could be said to mean that anything created is owned by everyone – it is in the public domain. If I take a photo then I should release it and let anyone use it however they like. And equally, I can use anything anyone else creates. This helps innovation because I could take a piece of software, improve it and then release the better version for the greater good. Or I could edit a movie to change some part of the production quality to my tastes, then release it as another version. Clearly, this would result in better or differentiated works being made available. It encourages creativity and competition.

On the other hand, the extreme capitalist would want to know what they would be getting out of their hard work. If I go to the effort to write a story and come up with some brilliant ideas, it is only fair that I should receive some form of compensation for that work. It is unfair if I go to all the trouble of writing some software only to have someone else take it, improve it and then sell it themselves. I want to be paid for my work so that I can live comfortably.

You can see here that we have two extremes – the one that fosters creativity and innovation and the other that sees authors rewarded for their work. Unfortunately, in reality it is not so simple. It could be true that the incentive of payment for something I create inspires me to work on it thus resulting in creative works being created anyway. On the same lines, I might see an idea for some software and think I can do it much better, and write it in a completely different way. Here I have derived the idea from existing work but the expression of that idea is different and, I would hope, better.

So to solve this problem, as with much of law, we need to come to some form of compromise – an equilibrium. It is this level that we have now. In the case of music, I can publish a recording and control the use of it for 50 years before it enters the public domain and anyone can do what they like with it. This appears to have worked quite nicely until now.

Suddenly, the music industry have realised that some major works were recorded nearly 50 years ago and in a few years their source of revenue will expire. It is this sudden comprehension that has prompted the music industry to start lobbying the government to extend the duration to publication + 95 years for music, thereby securing their own revenue for many years to come.

The capitalist says “fair enough – I would like some more money”. The socialist says “hold on one minute, I was going to use that in my own creative work”. Once again we are faced with an issue of paying money to the publishers or allowing someone to adapt and create something new.

One might say “ahh, it’s already 95 years in the USA and they’re doing fine”, but my response would be “but are they really?”. Is it not true that all the best and most famous musical creations have come from the UK? The likes of The Beatles, The Rolling Stones, Pink Floyd, Muse, Oasis, The Verve, Coldplay, and many more. How many extremely successful groups are American? But that is a moot point, subjective to person tastes. And I’m biased towards the UK anyway!

Basically, innovation/creativity verses profit.

The corporations do pay a lot of tax but should it be at the expense of creativity – creativity which has seen a lot of very good British artists make a lot of money? Do we want to stop artists from the beginning of the musical revolution of the 1950s from earning any more money at the possible expense of new work? So what does the government do? What is does best – it set up a committee!

At the Enterprise Conference on 2 December 2005, the Chancellor of the Exchequer announced that, as part of the Pre-Budget Report 2005 package, he had asked Andrew Gowers to lead an Independent Review to examine the UK’s intellectual property framework.
– HM Treasury Press Release

This review called for evidence from a wide range of people and organisations from all sides of the discussion. It has looked at all aspects of the structure of intellectual property in the UK but what I am concerned with in this blog post is the recent comments on copyright term extension.

The Open Rights Group, of which I am a Founding Member and part of the Technical Team submitted evidence (to which I contributed) with many of the arguments and points I have mentioned above. As the issue became more and more important in the eyes of the media, ORG also set up a campaign to help raise awareness. This included a talk from Professor Jonathan Zittrain who is a Professorial Fellow at Keble College Oxford and Professor of Internet Governance and Regulation and the Oxford Internet Institute (listen to the speech here).

On Monday the BBC News website featured an article which stated that the Gowers Review would:

recommend the terms are not extended, a well-placed government source has said. This outcome would mean the report had “missed a great opportunity” to support the music industry, the chairman of the British Phonographic Industry claimed.

This is great news for the ORG campaign as well as for artists in the UK. It means that protection will continue to exist but more popular work will start to become publicly available which should foster new creativity.

But there is a catch.

The Gowers Review is not binding on the government. It is there to advise and the government could easily ignore it. With this news, the pressure from the music industry is going to get massively greater and I imagine they will do all they can to influence the final decision. I would, however, hope that the government doesn’t ignore the Gowers Review, which has far more expertise in the area and can be expected to advise the government correctly.

How likely is that though? We shall see

Petition the PM

Today I was impressed by the government. It doesn’t happen often, but today it did. What was impressed by? I was linked to an online petition through the Open Rights Group I am a member of, hosted by the Downing Street website. I went on to discover that the website is running a trial of an online, automated petition system that allows any British Citizen to submit a petition to Downing Street and let any other British Citizen electronically sign it.

Petitions have long been sent to the Prime Minister by post or delivered to the Number 10 door in person. You can now both create and sign petitions on this website too, giving you the opportunity to reach a potentially wider audience and to deliver your petition directly to Downing Street.

The system is run by mySociety and the software used is open source and can be downloaded by anyone.

It also states that:

Once your petition has closed it will be passed to officials who work for the Prime Minister in Downing Street, or sent to the relevant Government department for a response. Every person who signs a petition via this website will receive an email detailing the Government’s response to the issues raised.

Ignoring all cynicsm for a moment, I think this is a great idea. It is very easy to send out an e-mail to people to ask them to click a link and fill out a quick form to add their support to a petition and this service allows that petition to be delivered directly to Downing Street.

Of course, the main issue is whether this will be more effective than delivering a paper petition in person or not, but still the principle is there and making it easier to get your voice heard can’t be all bad, particularly if you’re guaranteed a reply.

A week of morality

David Mytton is having a kind of themed week on his blog. On Monday, today and Friday he is posting a discussion/analysis of certain moral questions interspaced by two posts yesterday and tomorrow with business advice.

On Monday the topic was:

Is there any difference between lying to someone and withholding something from someone?

and today the post is:

If a friend did something illegal, would you inform the appropriate authorities?

Thoughtcrime

The latest post by Geeklawyer, specifically the first paragraph, caused me to think about the differences between inciting hatred and violence.

Geeklawyer is glad that the ultra right wing extremist British National Party (BNP) leader Nick Griffin was acquitted of charges of using words or behaviour intended to stir up racial hatred. He is of the view that only speech which incites, or is genuinely immediately likely to do so, violence & discrimination should be unlawful. If hating $(todays_unpopular_group) is lawful, and even this government is not proposing to make it illegal to hate Muslims, then inciting hatred should not be an offence either. Inciting violence yes, inciting opinions no. Criminalising incitement because it makes it easier to prevent violence is not the answer since it has knock on effects on free speech.

What is basically being said here is that hate is a feeling and/or opinion – it is not something physical and is many cases results in no detriment to the hated object so far as physical action is concerned. In the UK we have the right to free speech and so we can enjoy hating whatever or whoever we want without fear of being arrested. Even when the hatred is voiced it still counts as opinion and we still have the right to freely say what we want.

However, it is when that hatred is expressed as violence that a line is crossed. Here, Geeklawyer is saying (and I completely agree), is where the law should come into play – violence is illegal. But, then, why is it also an offence to incite racial hatred when all you are doing is expressing your opinion?

Until I read this particular paragraph by Geeklawyer, I assumed that inciting racial hatred and inciting violence are one and the same. Indeed, that is probably what was assumed when the case against Nick Griffin was started. However, they are actually very different.

Hate is opinion. Violence is action.

On that basis, is incitement to racial hatred is just extended thoughtcrime? If that is illegal then why stop there? What is the difference between me saying “I hate [racial group 1]” compared to “I hate [political party 2]”? In both cases people might be offended? To go even further, what is the difference between a group of my friends saying the same thing? In the former I would be breaking the law by expressing my opinion to a group of friends whereas in the latter I would not just because one group is categorised by race and the other by political alignment. Do we really need to protect the general public from offence, as suggested by Gordon Brown:

Any preaching of religious or racial hatred will offend mainstream opinion in this country.

If we do, (and as you probably have gathered, I do not think we do) then there should be a blanket rule and not one based on race. That’s discrimination.

 

The God Delusion

…the Government of the United States of America is not, in any sense, founded on the Christian religion;

This is an interesting quote from a treaty with Tripoli, drafted in 1796 under George Washington and signed by John Adams in 1797 (the first president and vice president respectively) because the common perception is that America is perhaps the most religious country in the world. This may or may not be correct, but as the BBC reported:

A survey done in 2001 by the City University of New York Graduate Center found that 85% of Americans identify with some religious faith. In contrast, in Canada and the United Kingdom, two societies often perceived as quite similar to the United States, only 28% and 17% respectively described religion as similarly important in their lives.

This clearly presents us with a paradox – despite the founding of the USA as a secular country, religion has far more of a part in daily life than in England where the entire constitution is based around a central church, a monarch as head of state and religion influencing many aspects of society including law and education.

Over the last few weeks I have been reading the latest book by Richard Dawkins, Professor for the Public Understanding of Science at Oxford University. Previously, I have read The Blind Watchmaker which goes into great biological detail about evolution, with the specific intention of countering creationism – and it does a very good job. So based on my experiences with that title, I immediately purchased a copy of The God Delusion which takes aspects from all of his books and presents them in a logical format in order to completely disprove religion.

My use of the word “disprove” above is worth elaborating on. This is best explained using a part of the second chapter of the book:

Begin quote

Let us, then, take the idea of a spectrum of probabilities seriously, and place human judgements about the existence of God along it, between two extremes of opposite certainty. The spectrum is continuous, but it can be represented by the following seven milestones along the way:

  1. Strong theist. 100% probability of God. In the words of C.G. Jung, “I do not believe, I know.”
  2. Very high probability but short of 100%. De facto theist. “I cannot know for certain, but I strongly believe in God and live my life on the assumption that he is there.”
  3. Higher than 50% but not very high. Technically agnostic but leaning towards theism. “I am very uncertain, but I am inclined to believe in God.”
  4. Exactly 50%. Completely impartial agnostic. “God’s existence and non-existence are exactly equiprobable.”
  5. Lower than 50% but not very low. Technically agnostic but leaning towards atheism. “I don’t know whether God exists but I’m inclined to be sceptical.”
  6. Very low probability, but short of zero. De facto atheist. “I cannot know for certain but I think God is very improbable and I live my life on the assumption that he is not there.”
  7. Strong atheist. “I know there is no God, with the same conviction as Jung “knows” there is one.”

End quote

The important distinction here is that many religious people will place themselves (or be placed) in category 1 whereas most atheists will actually be in category 6, not 7. Science can only suggest something beyond reasonable doubt and with that you cannot say that “I know” because there is always a chance that you are wrong, just as there is always a chance that a theory, no matter how many experiments support it, might be disproved. It is also this difference that marks extremism – extremists will not change what they “know/believe” even in the face of absolute proof whereas atheists will always be open to change their view if a persuasive argument is provided or evidence is found to suggest what they believe is wrong.

If you suggest that “beyond reasonable doubt” is not sufficient – despite what science might say there will always be a chance that God exists – then that’s fine, but then you must also apply the same logic when looking at legal cases and by that same logic you must find every single criminal case in favour of the defendant. All criminal cases (at least in England) are concerned with proving “beyond reasonable doubt” that the defendant is guilty and if you throw aside that level burden of proof then you must also throw aside the legal system we have today.

Equally, just because something cannot be disproved does not mean it exists. For this we use the teapot parable by Bertrand Russell:

Many orthodox people speak as though it were the business of sceptics to disprove received dogmas rather than of dogmatists to prove them. This is, of course, a mistake. If I were to suggest that between Earth and Mars there is a china teapot revolving about the sun in an elliptical orbit, nobody would be able to disprove my assertion provided I were careful to add that the teapot is too small to be revealed even by our most powerful telescopes. But if I were to go on to say that, since my assertion cannot be disproved, it is intolerable presumption on the part of human reason to doubt it, I should rightly be thought to be talking nonsense. If, however, the existance of such a teapot were affirmed in ancient books, taught as sacred truth every Sunday, and installed into the minds of children at school, hestitatation to believe in its existence would become a mark of eccentricity and entitle the doubter to the attentions of psychiatrists in an enlightened age or of the Inquisitor in an earlier time.

This is just part of what is covered in The God Delusion. Not only is scientific proof presented that clearly disproves God “beyond reasonable doubt” but logical and sensible theories are put forward for counter arguments such as:

  • If there is no God, why be good?
  • What are the roots of our morality?
  • Where does religion come from?

And perhaps one of the most difficult to defend against – “What’s so wrong with religion? Why be so hostile?”.

This book is good. Extremely good. It is written with a level of arrogance on the part of Dawkins, but unlike the Bible or any other religious document, sermon or teaching, the arrogance is almost completely justified by scientific reasoning. Before reading it I would have considered myself able to engage in an intellectual discussion with a religious believer up to a certain point, but I now feel confident in being able to counter any point raised in favour of religion. I can now say without doubt:

I am an atheist.

 

Expression

In English Language A Level you look at various aspects of the English language, one of which being comparing the types of form – i.e. spoken and written language. This includes looking at the features of each and comparing them. One of the “advantages” of written language that is highlighted during any comparison is its permanence in the sense that when something is spoken, unless you record it, it is lost, but something written is usually pretty permanent.

I enjoy writing and the written form is my favourite method of expressing myself. I find it easy to write down something – a description, a commentary, an answer to a question or my thoughts about something. I find that it allows me to logically transcribe what I’m thinking and arrange my ideas and thoughts effectively.

Usually, when I write something such as a blog post or an essay, I will sit and think for a few moments about how I want to start the first paragraph and then I will start writing. I rarely plan – I just start writing and the rest of the text just flows naturally. After I have written out the first draft, I will reread it several times adjusting phrases, updating grammar and perhaps rearranging a few sentences or adding some additional detail. Despite not planning I don’t find that I need to rewrite anything. I can only remember one or two instances where I have written something out for a blog post and then not posted it at all, and those were on a different blog about personal topics.

This ability to “just write” has been particularly useful under test conditions. I know people who have to plan out an essay structure to get a good mark in an exam (particularly in English or History exams for example), but I have found that I don’t need to. I look at the question, work out how to start and just write. Having revised beforehand, the knowledge I have is converted into a structured essay as I write it down. Occasionally I’ll think of something that could fit in later and I’ll jot down a single keyword, but the only time I remember doing that was in my Business Studies A Level exam.

One thing I will always remember is when I got full marks on a Business Studies A Level module exam and my teacher asked me to tell the rest of the class how I write my answers. When I explained what I said above – that I don’t plan and just write – she was not too pleased! But it works for me. It won’t work for everyone, or even most people. It takes time and experience to discover how you learn best, and then how to express that in an answer to an exam question.

My ability to do this, coupled with the fact that I really enjoy writing, led me to choose Law as my degree subject. In my opinion, you cannot get any more advanced than legal prose. The complex structure – particularly grammar but also lexis – makes any legal document difficult for most to understand. Being able to fully comprehend such documents makes the legal profession quite elitist, and rightly so. Legal language is the very peak of the use of the English language and something I regard very highly. It is not easy to do.

I didn’t (necessarily) choose law to go on to practice as a lawyer, I chose it because I wanted to both improve my ability to write and to understand the complex system that is pretty much at the heart of society in the developed countries in the world, if not all the countries. What started as a handy ability to answer exam questions progressed into actually writing a blog (or two) for fun and will hopefully develop into something I can use in a future career, whether it is in the law or not.

 

Religious Dress

It is currently Reading week – a time to read. Yeah. Or something like that.

In addition to reading, we have been set a short assignment to comment on a case we have been looking at in Constitutional & Administrative Law, an assignment I have just completed and am now going to republish here:

Read the Court of Appeal decision of Brooke LJ, and the House of Lords decision of Baroness Hale, in Begum v Denbigh High School. In your opinion, how should this case have been decided and why.

The UK is not secular – throughout the country there exist schools run by the church, Religious Education is part of the national curriculum and religious dress is often incorporated into uniform policy. Indeed, the history of the UK revolves around religion and the influence of the Church of English, and now increasingly the religious beliefs of a wide variety of faiths. In contrast, the United States (and many countries in Europe) operates a secular educational system to allow the state to appear neutral. However, despite this, an interesting paradox exists in that the US “is now the most religiose country in Christendom, while England is among the least”[1] . This is particularly the case when the President of the USA himself openly states that “he [is] driven with a mission from God”[2] which goes against the original non-religious founding beliefs of the American government.

Whilst this decline may be true for Christianity, we are hearing more and more in the news of disputes arising not from Christian believers but from the members of the Islamic faith. Islam is often seen as much more extreme in the way belief is expressed – particularly with the dress code. Considering this in isolation, it seems silly that such an expression of religion can inspire such thoughts when the habit worm by a nun would be accepted without a second thought. The headscarf or full length dress is often seen as a symbol of Islamic fundamentalism and thanks to coverage by the media, in particular the relationship with terrorism, the connotations of these clothes create an air of suspicion and even fear in Western countries.

So when a case such as Begum v Denbigh High School arises, it is immediately transported to headline news and becomes a talking point across the country. The question that is raised here is not whether someone should be allowed to express their beliefs but how far the freedom to do so should extend. This is particularly relevant in the case of Denbigh High School who were very accommodating with their uniform policy to ensure, in consultation with the local religious community, that all reasonable options were available to pupils. But what is “reasonable”?

From this case, and others like it, it is apparent that whilst the courts are of course allowing the right under the ECHR, they are applying certain conditions to it where other people or society as a whole is affected. This was particularly the case with the recent case of the teaching assistant Aishah Azmi who was suspended for wearing a full veil during lessons[3]. The stance taken here was that the veil caused health and safety problems during certain lessons and children had found it difficult to communicate with her.

In both the Begum and Azmi case, a choice is available – in the former, the student does not have to attend the school and in the latter the assistant can find a different job. On its own, this sounds like a very stubborn approach – “we’re not changing so if you don’t like it, go elsewhere” – but in reality both schools attempted to make concessions for these kind of situations and in both cases the options presented were declined. When looking at it like this, to avoid dangerous precedent, the courts really had no option to find against both claimants. If their cases were to have succeeded then it could result in a large number of similar cases for all kinds of religious beliefs resulting in great expense for organisations forced to accommodate any request. It would then be seen to be taking advantage of the tolerant society and the rules set out in the ECHR that exists in the UK which does not exist in other countries, particularly those where Islam originated.

At the heart of the debate is of course religion and the rights allowed for each individual to freely associate himself with any religion of his choosing. An interesting argument raised by Richard Dawkins in his excellent book, The God Delusion, is why do we treat religion with such respect and consider it polite not to interfere with the religious beliefs of another? This possibly derived from a speech by Douglas Adams:

“Religion…has certain ideas at the heart of it which we call sacred or holy or whatever. What it means is ‘Here is an idea or a notion that you’re not allowed to say anything bad about; you’re just not. Why not? – because you’re not!’ If somebody votes for a party that you don’t agree with, you’re free to argue about it as much as you like; everybody will have an argument but nobody feels aggrieved by it. But on the other hand if somebody says ‘I mustn’t move a light switch on a Saturday’, you say, ‘I respect that’. When you look at it rationally there is no reason why those ideas shouldn’t be as open to debate as any other, except that we have agreed somehow between us that they shouldn’t be.”[4]
So perhaps the real question that needs to be considered is why does the ECHR give such direction over freedom of religion in the first place? When you do actually consider that and come to the conclusion that there is no reason, you understand why the secular state exists.

The Perfect Example

When I showed the Military Commission article on The Register to one of my friends yesterday he said that it’s a sign of things to come here in the UK. I disgreed because in the UK we do have an effective parliament and safeguards in place. The government might try and instigate the likes of the Legislative and Regulatory Reform Bill but they have so far, and I hope always will, fail.

Another perfect example of how this is the case is when the detention without trial idea was suggested only to be scrapped because it is against human rights laws. It’s ironic that it was this Labour government that passed the Human Rights Act in 1998 and now things they are trying to get through are being blocked because of it! I’d like to think that anything similar to this in the future will meet the same fate and our judicial system will ensure that even if something suspect does come into force, it doesn’t have much of an impact upon the freedoms we take for granted.

And I’m glad the Lord Chief Justice thinks along the same lines.

The beginning of the end

I hate the American media. I can’t stand their “news”. And I use “news” in the lightest sense. You only have to watch Fox News to see what I mean – a show of pure drama and hype. The news as I see it in the USA is purely for entertainment value and rarely shows an unbiased or independant view. Contrast that with the BBC News and even ITV or Channel 4 news and it really becomes aparrant. We are so lucky in the UK to have the BBC News providing real impartiality in their original news broadcasting.

However, despite my dislike for news reporting in the United States I am actually going to link to a 9 minute clip from an MSNBC broadcast which mirrors some of the points I highlighted yesterday. But even this clip that assults the Military Comissions Act and the government that passed it caused a shiver down my spine in the way that it was presented. If this had been reported by the BBC News (it may have been, but I don’t have a TV) I would have expected a summary of the points of the legislation covering both sides and possible impacts and perhaps a comment from the US political correspondant, but certainly no personal opinion. This MSNBC piece did none of that and focused entirely on what had happened in history and how it was the beginning of the end of America.

The media always hype things, particularly the destruction of freedom and liberty (rightly so?) and that is even more so in the USA. But on this occasion if you can put up with that, it’s worth watching.

Military Commissions Act

So called “Western society” is supposed to be the pinacle of democracy, fairness, justice and tolerance. I’m proud of British history and when people look back on the 21st century I want them to be just as proud of our the achievements.

Sometimes I feel sorry for the Americans who have to put up with the Bush administration. For the most part, Europe and the UK have been spared such crazy things like software patents, the full extent of the Patriot Act and forced teaching of creationism as a scientific theory (it might be a theory but it sure as hell isn’t scientific). So when I read an article today on The Register about the Military Commissions Act of 2006 I was dismayed at the extent to which rights are being eroded in the USA in the name of democracy – as a “a “vital tool” in the war on terror”.

My political alignment is not clearly defined – I like ideas from all sides of the political compass. As a result I’m by no means a liberal, but I think that aspects of law enforcement such as judicial review, parliamentary review, the right to legal counsel, the right to not be tortured et al are crucial aspects to a fair and just legal system. That the removal of these aspects of a legal system (all be it concerned with military commissions) can actually pass through the legislative stages in the USA is beyond belief. What exactly is the purpose of Congress if it just passes these bills without any consideration for the key aspects of modern society that it will demolish? I know our government has tried similar things, but they always fail – our parliament works in that stupid ideas such as these cannot get through.

It is the job of the media to exaggerate to get a story, but even so actually looking at the text of the act reveals that what is being described in the article on The Register is true:

For the bill that he signed with such evident satisfaction has relieved the federal courts of their rights and duty to hear petitions for a writ of habeas corpus, which allow prisoners to challenge their confinement under Constitutional principles.

The new law, called the Military Commissions Act of 2006, will allow rough treatment during interrogations, so long as the President designates a practice not to be torture. But he is permitted to “interpret” international law forbidding torture to suit himself.

The government, not the courts, will now be deciding what is cruel and inhumane treatment. Only monstrous abuse, reaching the level of a war crime, such as rape, mutilation, and the like, are expressly forbidden. And prisoners will not be granted legal counsel during interrogations.

Another reason I will never, ever live in the USA.

 

Trauma

In the UK we have a criminal legal system which requires the burden of proof to be “beyond reasonable doubt” – should any doubt be present then the defendant should be acquitted of any charges. You already knew that.

The way the system works is a witness will be questioned by their own counsel and then cross examined by the other side. The idea here of course is to determine the facts of the case and convince the jury (if present) that something did or didn’t happen, how it did or didn’t happen and to prove or disprove the charge. The questions can often be difficult and since most barristers are cunning, the questions will also be worded and crafted in such a way as to get the answer the particular barrister wants. But you already knew that too.

It is quite fun to watch when this kind of thing happens. You can see how answers are manipulated and in many cases the witness will become frustrated, making them even easier to question. This is fine if the witness is a horrible criminal – you want to see them have a hard time – but what if the witness is the victim or someone who is vulnerable? Fine if they’re a hardcore robber but what if they are a young rape victim?

I have just finished watching a Panorama documentary on how rape is dealt with by the legal system (good old BBC making it available for free online). I didn’t watch this because I was told to, although the consideration of consent turned out to be completely relevant to what we are currently looking at in our Criminal Law seminars at the moment). The points raised were quite interesting in that whilst our legal system does indeed ensure (for the most part) that if someone is convicted then they are actually guilty, but the way it works in sensitive cases such as rape raises some important questions.

The documentary mentions that in many rape cases it is just a question of the word of one person against another, and usually the victim is highly traumatised by the incident and may have even been drugged or intoxicated and thus unable to remember anything. In these situations the only evidence is that provided by the defendant who is not going to admit to what actually happened. If there is no evidence to suggest otherwise – no video cameras, no witness and no credible testimony from the victim because s/he was drunk – whilst it might not be what you want, the only legal response is to aquit. There is doubt as to what happened and the burden of proof is clear.

Based on these factors, the first point that must therefore be considered is how counsel questions victims in such cases. Their job is to win for their client and you often read how lawyers are heartless monsters who will do anything to win In reality, they are actually real people and I would even suggest most lawyers have their own moral code! How do you deal with such a sensitive issue when the only real defence is to bring into question the credibility of the victim?

From Panorama:

The defence counsel’s strategy in these cases is to undermine the credibility of the complainant. Sometimes this is done in a very heavy-handed way, you know, by dragging in her sexual past. Sometimes it’s done rather more subtly. But it doesn’t matter which way it’s done, that is the strategy. To suggest to the jury that this woman, who is telling you this story, well perhaps she’s not entirely credible. – Jennifer Temkin, Professor of Law – University of Sussex

But wait, is “victim” the correct term here? Is our legal system not based around the principal that the accused is innocent until proven guilty?

Yes, true, but I think that’s a technical legal point that isn’t really relevant in the actual treatment of the victim…or alleged victim.

So what do we do?

Perhaps looking at the second point will help with the dilemma of the first? The burden of proof. If it is really just down to the word of one against another does that not mean that the jury has to weigh up the probability of whether the testimony of the one is more likely to be true than the other? How likely does it have to be for the jury to consider it to be true beyond all reasonable doubt?

The question is therefore should we make an exception in the case of rape to the burden of proof and change it so that the burden of proof is like civil cases – the balance of probability?

If you change the standard of proof just to get a conviction, what will happen is you will have innocent people going to prison, and probably sitting in prison for years, for something that obviously they haven’t done. I think the balance always has to be to ensure that innocent people don’t go to prison. Our system is revered around the world as being a fair system, and unfortunately if that means that guilty people walk free, then that is the price you pay for ensuring that an innocent citizen isn’t locked up for many many years. – Kirsty Brimelow, Criminal Barrister

As a law student learning in detail how the system works, I think these are good questions that students should be considering – how the legal system has been built up to handle these cases and how well it does it, especially if many students are going to go on and be involved in these kind of issues.

So what should be done?

 

The UK Statute Law Database

Although I am only a first year law student, I have already had to use my Statute Book and the law resources online to research cases and particular legislation. This is made easier because my university subscribes to the well known online legal databases such as Lexis Nexis, Justis and Westlaw. These resources are helpful because it becomes much easier to find the text of the legislation as well as any ammendments and annotation.

Unfortunately, these resources are subscription based i.e. they will probably cost a hell of a lot of money to use. Just looking on the Lexis Nexis website right now I see that the prices aren’t even available – you have to contact someone first. That’s always a bad sign!

I read The Guardian and there has been an ongoing campaign in their technology supplement called “Free Our Data”. This is particularly focused on data such as post codes or Ordinance Survey maps, but I recall them also mentioning making available the law which applies to us all i.e. legislation. Already Parliament (through a fancy new website) and the DCA provide access to recent legislation as well as bills currently going through Parliament. There is also online access to Hansard and the particularly useful theyworkforyou.com. But there is no centralised source that can provide you with access to the full text of all the legislation along with details of ammendments etc etc.

That’s where the Statute Law Database comes in.

I have heard (even mentioned in one of my lectures last week) that this database has been planned for many, many years but it is now finally almost ready for access by the public. For free! It is currently in phase 3 of the public testing where a small number (under 100 I think) of people have been given access to test out the features and provide feedback – I am one of those people.

I was given access on 2nd October and since then I have been playing around with it when I got the chance. Over the weekend I actually got the opportunity to use it “for real” when preparing some work for a seminar this week. I was reading up on a case (R v Brown [1994] 1 AC 212 (HL)) which mentioned two sections of the Offences Against the Person Act 1861. I didn’t know what was contained within those sections so I used the SLD to find out.

Originally I was going to write up my “review” I wanted to include some screenshots but I was asked to wait until it actually goes public because:

“We are currently working with our supplier to make some screen changes and this is likely to be a process that will take us up to completion of the Pilot. One of the reasons for us running this as a pilot is to ensure that when we do go live we are presenting a facility that we have signed off and that is why I would prefer existing public facing systems, such as your own website, to not display images at the moment.”

The interface looks fine to me already – clean and simple – but this is fair enough and so instead I shall describe it.

After logging in (login will be removed on the launch since it will be available freely) you can search for a specific title, year and number within a number of different legislation types – and there are a lot of types. From UK General Public Acts to an unrevised NI Order in Council and from Church of England measures to Welsh Statutory Instruments, it seems that the SLD covers it all. You can also view all of these in alphabetical or chronological order as well as conduct detailed searches on the database.

Once you have located a document you wish to view, you will be taken to what could be called a section overview of the act. You can then click on the title to view that section, or the title of the whole document to view the entire thing in full.

The SLD also provides a list of the ammendments that have been made to the document, or that a document makes to another document. Version history is also available so you can see how many versions there have been and how they differ from one another.

But as with anything, there are a few problems. My biggest issue is, as mentioned on Binary Law, addressability. When I was conducting the research on the Offences Against the Person Act I needed to cite my source. Unfortunately, the URL for section 20 looks like this:

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation
&title;=offences+against+the+person&Year;=1861&searchEnacted;=0
&extentMatchOnly;=0&confersPower;=0&blanketAmendment;=0
&sortAlpha;=0&TYPE;=QS&PageNumber;=1&NavFrom;=0
&parentActiveTextDocId;=1043854&ActiveTextDocId;=1043873
&filesize;=4415

which is not good to paste into a footnote. However, I was actually able to reduce this to:

http://www.statutelaw.gov.uk/content.aspx?ActiveTextDocId=1043873

and that was perfect for my work. But it is a pain to have to do that and each document really needs a “permalink” which is short and can be copied into footnotes and references. This is something that the subscription legal databases like Lexis Nexis also fall down on.

Another issue I had was finding ammending legislation. Because I thought it was funny (hah hah), I looked at section 17 of the Offences Against the Person Act which is listed as:

“Impeding a person endeavouring to save himself from shipwreck.”

This was originally punished by

“penal servitude for life”

However, this was ammended “Words repealed by Statute Law Revision (No. 2) Act 1893 (c. 54)”. I tried to find out what this Act said but I was unable to find it in the SLD nor using Google. Because of this I was forced to use Lexis Nexis to view the Offences Act which explained that:

“See further, the punishment for a person liable to penal servitude is now imprisonment for a term not exceeding the maximum term of penal servitude for which a sentence could have been passed immediately before 18 April 1949: the Criminal Justice Act 1948, s 1(1).”

This is probably something that as a qualified lawyer I would have known – the change by the Criminal Justice Act – but as a new student I did not. Nor would I have known if I was a member of the general public. Whilst this may be out of the scope of the SLD it is nevertheless a problem I faced.

It is fun to be involved in a project like this, even at the final testing stages, because I am possibly the only law student on the scheme and law students are definitely going to be making use of the service. I hope the changes I think are necessary and those suggested by other people (Binary Law) are made for the final launch, due in December.

 

Obligations

Last week was my first week on a full and proper timetable, which is split between lectures and seminars. I had prepared the work I needed to for the seminars and this weekend I have been doing the same – preparing for the seminars for this coming week.

We haven’t really been “taught” much law so far – a lot of the lectures and seminars have been focused around an introduction to the modules. So when the second piece of work for the Obligations I seminar was set, I was a little surprised at what the question was. For example:

What is the likely (legal) outcome in the following situations?
1. Gary had installed a new kitchen for his friend Dave. When Dave bought a new car, he promised to give Gary his old car when the new one was delivered. Garry accepted, but Dave later changed his mind and decided to sell the car instead.

7. Martha rents out rooms in her flat for £300 per month. When James, one of her tenants, unexpectedly lost his job, she told him that she would accept half the rent from him, as she thought this would be easier than finding a new tenant. Two months later, James finds another job – but when Martha says the rent should go back to £300 per month, he tells her he doesn’t have to pay that much any more.

My first thought was that we hadn’t been taught where to start with these kind of questions, but then I remembered that in actual fact, I had everything I needed with the “Overview of Contract” booklet that we’d been given, and the books that I had bought. First lesson learnt: there is no spoon feeding here; you’re given what you need but it’s up to you to make use of it and find the answers yourself – so much different from A Level.

And that’s how it should be. It was really satisfying to be able to use the materials I had on my own to find the answers – or at least my interpretation of the material to provide an answer. It’s a great feeling and I enjoyed doing it, which shows that I have chosen the right subject.

It’s also very satisfying to see my site being mentioned in the Blawg Review! #78 was hosted by Human Law this week and I got a mention!

 

Finding case material

Unfortunately I was very busy with visiting the County Court for the day and then going to the Space Society meeting so I wasn’t able to post this as I said I would, but here it is now!

Feel free to comment and add your own resources/tips and reuse this document under the terms of the CC license this site uses.

Sources of case material

Pre 1865 – Nominate Reports

Found in the “English Reports”
Post 1865 – The Law Reports (Incorporated Council of Law Reporting)

Official law reports, approved by judges and preferred in court
Under 200 cases per year
25 series, of which 4 are reported today
AC – Appeal cases in House of Lords
Ch – Chancery Division
QB – Queen’s Bench Division
Fam – Family Division
Post 1936 – All England Law Reports

Report quicker than The Law Reports
Post 1954 – Weekly Law Reports

Report quicker than The Law Reports
Locations of case material

Westlaw

www.westlaw.com
Provides summary, where reported, links to full text, case history, cases cited, citations to the case, case comments.

The Law Reports
Criminal Appeal Reports
Weekly Law Reports
Others
Lexis Nexis

www.lexisnexis.com
Full text of case, citations to the case

The Law Reports
All England Law Reports
Justis

www.justis.com
The Law Reports
Weekly Law Reports
Family Law Reports
English Reports
Lawtel, Casetrack, BAILII

www.lawtel.com
www.casetrack.com
www.bailii.org

Transcripts

Finding legislation

As I posted yesterday, this is the first of two posts containing short reference documents I put together to consolidate the information I gained through lectures on finding legal material. This document concerns finding legislation.

Feel free to comment and add your own resources/tips and reuse this document under the terms of the CC license this site uses.

Types of legislation

Primary

Acts of Parliament or Statutes
Public General Acts – Apply nationally
Local/Personal Acts – Apply to an individual/locality
Debates published in Hansard
Green Papers – Consultative documents
White (Command) Papers – Policy documents
Orders in Council
Delegated

Statutory Instruments – made under the authority of statute
Other rules, codes, orders with the force of law
Locations of legislation

Westlaw

www.westlaw.com
UK and Scottish statutes and statutory instruments in force
Historic view allowing you to look at the legislation as it was at a certain date – goes back to 1992
Shows cases citing the legislation
Shows other legislation that applies or refers to the Act
Lexis Nexis

www.lexisnexis.com
Annotated UK Statutes, UK Statutory Instruments, Scottish Statutes and Scottish Statutory Instruments as updated and amended
Halsbury’s Laws of England – an encyclopaedia providing a narrative view of the law based on topics.
Whether an Act or part of an Act is in force
Justis

www.justis.com
UK Acts of Parliament, including Scottish Acts as updated and amended
Cross reference amended and amending acts
Repealed statutes from 1235 onwards

Finding…

In order to find the text of legislation back in “The Day” you would have had to look in the library and find so called “books” with the text in, and even then it might be difficult to find the very latest version and the text may not have any helpful annotations. Nowadays this task is much easier with the use of the internet and Google. But whilst Google is handy to confirm a fact or get a quick copy of the legislation, for full, authoritative versions with additional information about citations, ammendments and various other notes you need to look elsewhere.

Right now, “elsewhere” will be databases such as Lexis Nexis, Westlaw and the Justis. Unfortunately these are subscription based services but since my university pays for access to them I shan’t consider any other resources for the moment. In a few months the Statute Law Database will become available which will provide access to the legislation for everyone for free. I am part of the final phase 3 test user group and shall be reporting my findings in due course (i.e. when I get around to testing it in amonst my vast amount of reading and preparation tasks).

One of the first things I have learnt from the law school is how and where to find both legislation and case material. Across a few lectures we have been introduced to the services available and I decided to consolidate the information provided into two handy documents I now have stuck on my wall. And I am going to share these online and open them for comment, feedback and improvement (assuming anyone who is reading has the time to do so!).

As such, my next two posts tomorrow and Wednesday will be these documents typed out for all and any to use. And because the content on this blog is licensed under a very unrestrictive CC license, you can pretty much do with them as you please so long as you mention me! But if you do improve them I would appreciate any feedback.

Blogs, context and contract

Why bother blogging?

Barely a day goes by without an entry being posted on one of the blogs I read (see side bar right) about a new blog, the impact of blogging, a controversial blog or something to do with legal blogging. So it’s clearly something that is being done more and more. Just look at all the blogs in this directory.

Back in the old days, just having a blog was good enough to get readers, but that is no longer the case. Anyone can set up a blog and post about random stuff each day. In order to get readers and to keep them coming back you need to offer good content that is well written, covers topical issues or analyses well known ideas in a different way and is kept up to date. Often people will set up a blog with a great idea for their first post and then not have any idea as to what to write from then on. That is a danger and despite what people might think, it is quite difficult to think of fresh and engaging content continually.

Luckily, like quite a few subject areas, the law is a great topic to blog about because there is a lot of content available for inspiration. There are court cases going on all the time and the news is a great source for that. Equally, as a law student I am learning new things each day I have a lecture or seminar and I can have fun analysing that new knowledge in the context of what I knew (or didn’t know) already. I have yet to do that because I have yet to encounter something that is worth commenting on, but I do expect to reach that pretty soon (lectures so far this week have been more introductory and seminars start next week).

For qualified lawyers, blogs can be a good PR tool to promote your services and your law firm. For students like myself they can be a good way to just write up what is going on and see if anyone else has experienced something similar, or just to post a controversial comment in the hope of generating discussion. For me, it is more a case of exploring a different style of writing and subject matter than I have been used to in the past. I’m pleased to see that people are linking to this blog but it is not the primary reason I’m writing.

Yesterday, I listened to a lecture about how law is taught here – that the approach of the law school is quite different from many law schools around the country in that it takes a critical approach to the law. Whilst learning “black letter law” is very important, the teaching here supposedly gives you additional skills which can be applied even if the law you have learnt changes, as it inevitibly will. This will be the focus of the “Critical Introduction to Law” module – providing key skills for analysing law and not just learning the written facts. This is, of course, a very good idea and something I’m surprised is not the focus of all law schools.

Provided within this lecture was a good example about a law in the USA which states that any convicted criminal (or felon, if you’re using that crazy (perhaps even an oxymoron?) language that is American English) loses their right to vote in any presidential election. I was surprised that this law exists as I’m of the opinion that every citizen should have the right to vote, but that aside, it transpired that this rule was key to George Bush winning the election. Many black/hispanic Americans in Florida would have voted for Al Gore but by some co-incidence many of them were also convicted criminals. As a result, votes which could have (and probably would have) meant a victory by Al Gore were not cast and so the actual implications of this law were to provide a victory for Bush. On it’s own, the law is not racist, but when considered within this context, it really is.

So I can conclude by saying that what I knew in a general sense but did not have any specific examples for – the law exists as written fact but is rarely considered without some kind of context; that blogs are an increasingly important aspect of law; and that after reading through “Overview of Contract” in my “Obligations I” booklet, in actual fact, contract law is incredibly complicated!

Knowledge

The point of a degree course is to learn more about a specific subject – in great detail. If it’s a subject, like Law, that you may not necessarily have studied already, then it is quite acceptable if you know nothing about the subject. That’s what you’re at university for, right?

Maybe. I think it depends on the subject. Take Medicine for example. This is an extremely complicated and intense course and there really isn’t that much you could do before starting the course. Apart from study Biology and Chemistry. But even then I imagine there’s still not much you could do to get a “general overview” of the subject, so to speak. Indeed, how do you get a general overview of Medicine? Is it even possible? With Law, on the other hand, I would suggest that it is possible to find out a good amount even before you start the subject. At least find out about how the system works in general.

The lecture I had today was an introduction to the legal system, more focusing on what we’re going to be doing as part of the “Legal Process” module – visiting court, learning about the UK legal system and exactly how it works. I’m sure this module is going to go into great detail on this (as with anything at university) but there’s basic knowledge that you could have obtained even before studying the module. Particularly if you knew you were going to be learning about it e.g. before the lecture or even before coming to uni to do law in the first place. I’m talking specifically about how the UK courts system is structured, the difference between the criminal and civil courts and various other small bits if information. It only takes half an hour or so to read a few pages from a book, do some research, visit wikipedia and build up a foundation that the lecture will build upon.

Obviously, I’m not saying here that it is a requirement to have detailed knowledge about these kinds of things – that’s what the course is there for – but even so, the number of people in the lecture who didn’t have a good idea of what happens in the courts was surprising. Or maybe they just weren’t confident enough to say when asked. At least I hope that’s that case.

Over a week

So far I have implied that I am actually a current Law student and since this blog was started during the summer it could be assumed that I was in my 2nd or maybe 3rd year. However, I am actually just this week starting my first week of proper study in my 1st year.

A week yesterday I arrived on campus to begin studying the law at an undisclosed university in the UK. Last week was Fresher’s Week which involved a lot of drinking, parties and meeting new people. But amongst all that fun we also had some introductory lectures. These included receiving the module outline booklets for the 5 modules that I shall be studying this year:

  • A Critical Introduction to Law
  • Constitutional and Administrative Law
  • Criminal Law
  • Legal Process
  • Obligations I

One of the lectures in Fresher’s Week included writing a 45 minute essay titled “What is law?”. This was strange because I was intending to write a post here with that exact title, but ended up deciding not to. I enjoy writing on topics like this and after a little bit of preparation the night before, I had some good ideas that I was able to put into a structured essay for the lecture.

And today I shall be attending my first lecture that is not just an introduction to the subject/course/university as a whole. In fact this week I am not on full timetable but instead will have several lectures to introduce various key skills required to study the subject:

  • Going to Court
  • Introduction to Statutory Interpretation
  • Introduction to Reading Legal Cases

Although Fresher’s Week was good, I have been really looking forward to actually starting the subject – I got quite excited last week when the modules were introduced. I can’t wait to actually start!

I have all my books that I need for the first year on my shelf:

  • Gary Slapper & David Kelly, The English Legal System (8th ed), Cavendish, 2006
  • Herring, J., Criminal Law: Text, Cases and Materials (2nd ed), Oxford University Press, 2006
  • Ashworth, A., Principals of Criminal Law (5th ed), Oxford University Press, 2006
  • Ewan McKendrick, Contract Law: Text, Cases and Materials (2nd ed), Oxford
  • Mindy Chen-Wishart, Contract Law, Oxford University Press, 2005
  • Blackstone’s Statutes on Contract, Tort and Restitution 2006/7

These are very heavy and very thick, but do look quite interesting. So I am also looking forward to being able to use them properly to do legal research, especially since the total cost from Amazon.co.uk was £170!

So far university has been very relaxed, although expensive. Accomodation for the first year is £4036.36 self catered. Added to that £3000.00 for the year for the topup fees and you’re looking at about £7000.00 just to go and have somewhere to stay. My timetable has yet to be finalised with my full quota of lectures and seminars but I will now be able to pick up the rate of posting since I will actually have some content to comment on. I’m hoping to post again this evening after the first lecture.

I also have a strange urge to do some of my own research into my topic of particular interest – intellectual property and technology law – since these are not covered as separate modules in the first year, or even at all in the case of technology law. But what do I look into? What can I research?

 

Laws are meant to be broken

Laws are meant to be broken

You hear it quite often (in various forms), usually when some TV or film character is about to defy some rule or regulation that will save them or cause massive explosions. But it has a serious side that involves less fire too. Are laws actually meant to be broken?

First, we need to consider why laws are written. For the most part, they are there to provide some kind of protection to the general population. A speed restriction is designed to protect pedestrians in a built up area or the passengers if there is a lower limit due to fog, for example. In these cases, the laws are there to tell people what they should not be doing. They’re not supposed to be broken because doing so would endanger someone. But the key thing is that if they weren’t there, most people would probably exceed the “safe” speed limit, not because they want to kill or injure someone but because they don’t know what the safe limit should be. We’re not all scientists.

What about murder then? That it is illegal to murder someone does not really exist to provide a “guideline” like speed limits do – I’d suggest that most people won’t ever murder someone because they know it is wrong. In this case, the law only really has any effect if it is broken.

Digression: Although perhaps you could argue that we only perceive it as wrong because it is illegal and has been for a long time.

When laws are written, for most cases (I have yet to reach the part of the course where I can say “for all cases”) there will be some form of punishment defined should the law be broken. This means that the law is expected to be broken and so there must be some form of action that can be taken against those who do so.

Of course that doesn’t mean it was “meant” to be broken, just that there are actions ready to be put into place if it does happen.

It is in this way that we can say that yet again, there is no clear answer to this legal question and a different answer will apply depending on the situation. Just like the law itself.

 

The British Way

A great example of how we British deal with those pesky American courts was announced yesterday when a US court ruled against the British anti-spam company, Spamhaus, who lost by default after refusing to accept the US jurisdiction and subsequently not defending the case.

The invalid default judgement awards compensatory damages totaling $11,715,000.00, orders Spamhaus to permanently remove Linhardt’s ROKSO record, orders Spamhaus to lie by posting a notice stating that Linhardt is “not a spammer” and orders Spamhaus to cease blocking spam sent by Linhardt.

The full statement from Spamhaus can be found on their website.

Learner Speeders

Is it wrong to break the law?

There’s a simple answer and a more complex answer to this. The simple answer is that yes, it is always wrong to break the law because the laws are there to protect and ensure fairness, security and freedom. However, you also have to consider the context of the question – the answer would certainly differ depending on the situation.

For example, if you had to break a load of traffic laws to get someone to a hospital, would that be acceptable? Yes, I would suggest that it would be. At least in most cases – if you caused a mass pileup then perhaps it would be different.

For example, if you had to smash a door down to gain entry to a house that wasn’t yours to rescue someone who had collapsed, or was trapped, then I would suggest that would also be acceptable.

But, you might argue, these are only small crimes. What about something bigger, like, I don’t know…murder? In what circumstances would it be acceptable to kill someone? Perhaps in defence of someone else. But then we get into what the press are always going on about – reasonable force, a topic I could write a whole separate post on. What if the person you killed would have killed you? Perhaps he was going to detonate a bomb and you had to shoot him to stop that.

The point here is that in law, questions, events, legislation, punishments and actions can rarely be considered in isolation. Yes, in most circumstances it is wrong to kill someone and yes in most circumstances you should stick to the speed limit, but there will always be some kind of situation where that would change. And that’s why the law is interpreted and applied on a case by case basis.

And how did I arrive at the topic for this blog post? Remember when you were learning to drive? Remember how you had to keep the speed limit and it seemed that you were the only one driving at/under it? Remember the tailbacks caused by your keeping to the speed limit? The speed limit seems to be the law most commonly broken without any thought.

 

Free music

I’m always reading about people being threatened with legal action by the record industry, particularly in America and it always annoys me. Fine, downloading music that you’re not supposed to be is illegal and it’s fair enough that the industry is trying to make a point but they never seem to be interested in offering a decent alternative. The question that is at the heart of the problem is why pay for something when you can get it for free?

There are plenty of reasons why I might pay for something even when I can get it for free. These include wanting to support the company/individual who produced the item, wanting to get guaranteed support when you need it (in the case of software) or because getting it for free is too much hassle. The last of these applies most in the case of stealing items or going to the effort to finding workarounds to protection.

But the deciding factor why I might download music rather than pay for it would be that the music I download is good quality, fast to get and I can play it anywhere. If I paid and downloaded a track from the market leader, iTunes, I would be restricted by the DRM and my MP3 player might not even play the track (although I do actually have an iPod). The record industry cites reasons for not downloading is viruses and poor quality, but that is not the case – everyone should have anti virus software and the music from places like Allofmp3 is at least encoded at 128kbps. I pay to use Allofmp3 but it is very quick, easy and they have a brilliant back catelogue of everything I could ever want.

What’s the solution then? The industry needs to offer a comparable free service that can make it worth me using for extra services with added value than P2P or Bit Torrent. Or they need to provide a paid service that provides those extras that I might want to buy – bonus tracks, videos, interviews i.e. content that I can’t get anywhere else.

The first option seems like a good one but how do they make money from providing tracks for free? What about advertising? How many websites do you pay to use? And by “use” I mean read content from…Very few, if any. So how do they make money? Advertising. But not just any advertising – very specific context sensistive advertising. I have clicked on adverts before that are relevant to the content I’m viewing. This is where Google have made their money with their search and website advert services.

Considering the number of (clever) people in the music industry, it has taken a long time for a service like this to appear. And even when it has, it is not from any of the major labels…although the BBC reports that it is now being backed by Universal. Great! A free service that I can download music from. I would be happy to use that and might even click the ads because they will be relevant.

Unfortunately Spiral Frog will be US & Canada only when it launches in December.

Until then I shall stick to Allofmp3 and buying the albums of a select few favourite bands.

 

The Law vs. The People #1

Here’s a scenario: I’m a normal person and I want to save as much money as possible. Especially since I’m a student – I’m not a solicitor charging £stupid just yet. A new album has come out from one of the bands I like, but not enough to warrant paying £15 or so for the actual disk. I can also use a computer and I know about Bit Torrent. What do I do? Or more importantly, what do I want to do?

Of course I want to launch my Bit Torrent client, browse for the album and then wait an hour whilst it downloads. There are no viruses because I have protection. The quality is just as good as if I had bought it. The only thing I do not have is the satisfaction of adding the case to my collection shelf. What have I lost? Nothing really.

But I have just broken the law.

Is that fair? No, of course it’s not fair but then hard luck – life isn’t fair. What I should be asking is why is the law like that in this case? I don’t like that particular law. It doesn’t benefit me in any way. Laws that make it illegal to murder or steal are important and might affect me. They definitely affect someone every day.

Yet the law still exists. It exists not to protect me. Not even to protect the majority of the population. Not even to protect MPs. But to protect a small number of artists; or more likely their record label. They want to get as much money as possible from poor students like myself to fund their fancy hats and their fancy chairs. And when it comes to the USA, they even go after dead people!

Maybe laws should only exist if they benefit the majority of the populatation.

Woah. Hold on. That’s not a good idea at all. How many people fall foul of the law that prevents you from having sexual relations with an animal? Very few. Should it still be illegal. Yes. It’s sick. And if anything it protects animals.

Ok, so what about laws that only exist to generate vast amounts of revenue for huge faceless corporations. Nobody likes them do they? Well, may be…but people work for them. They need money to go on holiday just like the rest of us. And since the companies are based in the UK (or at least get taxed to some extent in the UK) they do help you indirectly because the tax revenue goes back into state services.

Hmm. The record companies can be real bastards at times when they should be trying to convince people that it’s worth spending £15 on an new album rather than suing them. But dispite this, the law is there for a reason. It might not help you now. It might not help you ever. But it will help someone at some point. And so it should. That law is there for a reason – to get as much money from you as possible to protect helpless artists from the evils of internet downloading.

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UK Patent Office sets the example

Unlike it’s US and European counterparts, the UK Patent Office is pretty good when it comes to following it’s own rules. Ok, I didn’t mean that about the USPO. They are legally allowed to patent software and computer implemented inventions unlike the EPO which just ignores that fact that software cannot be patented and grants them anyway. But I digress.

Today, Out-Law reports that:

Sony cannot patent inventions in the UK that remove the anonymity of the peer-to-peer user experience and put social networking at the heart of file-sharing. The Patent Office ruled last week that the inventions are not eligible for patents

This is good because it means that the UK yet again sets an example for the rest of the world showing how computer implemented inventions really should not be patented. When it comes to software it is important for competition and innovation that patent protection is not allowed because as we have seen in the USA, software patents are far too general.

The key is that an idea should have an inventive step that requires (or required) effort to achieve. Normal patents, say for a mechanical device, are different because it might be a unique way of doing something – and as such that should be protected by patent (because metal parts cannot be copyrighted). But when it comes to software patents to get the same kind of thing you would have to describe how the code works to such an extent you might as well just copyright it.

So we can logically and reasonably say that copyright is sufficient. Why are so many people saying this yet EU parliament members continue to ignore the people it will affect most? Oh yes, they’re being “sponsored” by companies who want the patents. Silly me. I throught the MEPs were supposed to represent my views. I guess I’m not paying them enough. Or at all.

 

To Google (not a vb.)

Google is a great company. They provide excellent services, mostly for free, and despite being huge with vast amounts of money they still manage to maintain a sense of humour even when it comes to protecting their brand:

When Washington Post reported that “Google” had entered the Merriam-Webster Collegiate Dictionary, it observed that the word has become a descriptor for its sector. Google wrote that it must avoid “genericide” and provided a list of appropriate and inappropriate uses of its name.

Among its examples was this appropriate use: “I ran a Google search to check out that guy from the party”; and this inappropriate use: “I googled that hottie”

The Out-Law article I took the above quote from provides an interesting editorial on one of my favourite areas of law – internet/computer related intellectual property law. The internet has changed a lot of things and IP law is one aspect of law that has had to change quite drastically.

The risk for Google is that it ceases to become a brand altogether. If it becomes generic, the brand can be struck from the register of trade marks, leaving the owner without rights. This has happened before: escalator, aspirin, pogo, gramophone and linoleum were once registered trade marks that became victims of genericide.

One case that comes to mind is the fight over sex.com. This domain was stolen from it’s owner due to a con man tricking Network Solutions, the .com domain registrations agency. A lengthy legal battle ensued and to cut a very long story short, the law was changed to recognise a domain name as an object of property that can be sold and that can have value. A great deal of value in the case of sex.com.

Old people complain

An interesting story appeared today whereby people who had phoned or texted Big Brother to vote out certain contestants complained because those contestants were brought back into the show.

The majority of the complainants believe that they have been misled as they were under the impression that they had voted to evict the contestants permanently

said ICSTIS in the statement.

I’m not sure where these complainants stand legally because when you make a phone call are you actually entering into a binding contract of service with the provider? What if, as in this case, the provider is acting on behalf of someone else? Is it then the providers responsibility to ensure that their client acts correctly?

We all know that only people who have nothing better to do send complaints to TV companies. And people who have nothing better to do are usually old people who are at home watching TV all day. Just like those who complain about Jeremey Clarkson’s comments on Top Gear or Have I Got News For You. Really. Get a sense of humour. Luckily for them they have E4 and can watch people making fools of themselves 24 hours a day on Big Brother. They don’t even need to get up out of the comfy chair. They can sleep when the contestants do – makes it more interactive.

But really, 2500 complaints?! I didn’t know that many people actually watched Big Brother.

 

Statute Law Database

I’m proud to be British. It is my opinion that we are the best country in the world and have some of the best organisations running the country (don’t confuse this with my liking of the current Labour government) with some of the best services available to ordinary citizens. For example as an internet user in the UK you have a vast amount of information available at your fingertips. Should you wish to, via the government or other organisation websites you can:

  • Book your driving theory and practical tests online and change them as you wish
  • Check car MOT certificate validity
  • Initiate a small claims proceeding, track and manage it
  • Watch and listen (live) to any event in Parliament
  • Keep track of what your MP is saying, what their voting record is and write to them for free
  • Look up details for any public company and get financial records about them
  • Pay any parking fines
  • Renew your library books

And the list goes on. Fair enough, the sites might not be standardised and there are some problems, but that is to be expected with such large systems. Improvement will come with time.

The one thing that is more difficult to do is find out about specific laws and legislation. There are lots of guides and leaflets that can be printed off, ordered and read online for different things such as company law, health and safety and traffic law, but the actual text of the legislatation itself is more difficult to find.

As a law student the law library is a very useful place to find this information, but it is more often than not in book form and when citing sources it would be a lot easier to provide a URL than a book name and page number. It is also easier to copy/paste small sections from a website to back up certain points in an essay.

Hansard, DCA and HMSO provide a useful resource on their respective websites but the documents tend to be scattered around and in a non-standard format. What would be useful is a single database that could be searched and kept up to date with the very latest documents.

Enter the Statute Law Database.

This has been in development and testing for some time and it is only now that it is finally getting ready for public use. I have obtained an account for the Phase 3 testing which will give me access to the database near the end of September to provide my feedback into what I expect will be a valuable resource for students, practicing lawyers and the general public.

Like any government service this has to provide a return to the Treasury and seeing as it is most likely to have cost a considerable amount to create, I will be interested to see how they recoup their costs. I can imagine a detailed search system like is provided with the Census available only to paying users but a “skimming” service to perform basic search available to everyone. I can also see a subscription model for businesses and universities who would want continual access.

What actually happens remains to be seen but you can be sure that if I am allowed to, I shall provide information about the service here once I get access. I bet that I’ll be one of few students who do have access and I intend to use that my advantage.

 

Wilbur Parry

Mr Bumble once said:

the law is an ass

What he really meant was

the law is an amazing subject that is infititely interesting and fun to study

and he’d be right. I think….

Moving on, I’m Wilbur, I’m 6’1″ tall, have brown eyes, slightly long, messy, black hair and I’m studying Law (LL.B.) at an undisclosed university in the UK.

There are plenty of blogs online that discuss the law and what’s going on within it. I thought it’d be fun to jump onto that bandwagon and do the same. Unfortunately after I got on it turned out that there weren’t any seats and seeing as I don’t really like standing, I decided to get off and buy a huge stagecoach with horses.

Several months later and at a cost of hundreds of thousands of yen, I present to you Law andstuff. The idea behind this blog is to provide an interesting view of the law, the study of the law, life as a law student and other irrelevant stuff. It will provide me with an excuse to write about the subject I’m studying in an uncensored and unrestricted manner and so my aim is try to add some humour to what can sometimes be a dry topic and provide opinion wherever I can stir up some controversy.

Should you wish to contact me, my e-mail is wilbur at lawandstuff.net

And so there you have it. This is Law andstuff. And I’m Wilbur.