Mullen principles should apply in D’Argy appeal case

Canadian satellite pirate Marty Mullen will be spending the next seven years in a Florida jail. Not the typical choice of retirement residence for a wealthy Canadian, but nonetheless appropriate for a man shown to be a prolific North American satellite pirate. Mr. Mullen was also ordered to pay restitution of US$24 million based on evidence submitted by NDS and DirecTV. As the Canadian member of the team that helped make this happen I was present in court for the sentencing hearing. The Canadian press reported extensively on Mr. Mullen’s case, but nowhere in the coverage was there mention of two issues raised during the sentencing process that reflected on the state of affairs in Canada. The first was a discussion of the effect of the R v. Therriault and D’Argy decision in Drummondville QC. In Therriault, Judge Côté would have it that any group in Canada, no matter how small, should be able to claim entitlement to view all programming from anywhere in the world notwithstanding the cost of providing it. If the judge’s reasoning were to hold true the enormous cost of the system she would seek to create would have to be borne by all Canadians. There would be a vast selection of programming here that no one would care to watch. Her Honour’s ruling fails to appreciate that satellite transponder capacity is infinite and has no cost. When this "freedom of speech’"analysis of Canadian law was presented to Justice Lazarra in the Mullen case in Tampa as a justification for stealing from Americans he was understandably irritated. He was quick to point out that freedom of speech cannot be invoked to justify theft. I would expect that when the full evidentiary record is presented to the Appeal Court in the D’Argy matter - there was some evidence missing so it should be added by way of intervention - we will see the same result. The second matter that was raised is an issue that I hope the Canadian government will note as it continues its process of amending the Radiocommunication Act and generally reevaluating broadcasting policies regarding signal theft. That is the proposition that when you find a master criminal profiting handsomely at the expense of average Canadians who are subsidizing the losses from piracy he should go to jail for a long time. Up to now Canada has been a safe haven for satellite pirates who have victimized Canadian and American companies alike. That must end. Marty Mullen tried to convince the Court that these are victimless crimes and we presented overwhelming evidence to the contrary. In Canada the victims of piracy are actually Canadians who cannot find employment in the broadcasting industry as well as the law abiding subscribers (the pirates call them "suckers") who pay extra for their satellite or cable service because the cost of piracy is inevitably built into their monthly fees. Hopefully some of what we learned from the Mullen case will rub off here in Canada. Bill McKenzie is a senior partner with Crawford, McKenzie, McLean, Wilford, Anderson & Duncan LLP.

Mullen principles should apply in D’Argy appeal case

News | 01/14/2005 5:00 am EST

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