Once again, the appeal has been filed. And again, it was done strategically at the 11th hour, so to speak..4:30 p.m. on the 30th day, the last day allowed. The reason for this is quite simple: the Crown (prosecutors) do not like going into appeals where they are only responding. They want to always play the adversary, so if you file an appeal, they file a cross appeal...if they have time. Needless to say, they had no opportunity to do that in this case.
The issues in the case have now become somewhat refined. Rather than convolute the appeal with many unrelated arguments, we will be appealing only those arguments which have a good, solid basis under law. Some of those, are the freedom of expression, which we have talked about before, and a few arguments based on whether the burden of proof required by the prosecution was actually met. As well, the relevance of Gray Marketing will also come into play, as it was ruled out by the previous judge on the basis that I couldn't show case law showing that Gray Marketing is actually illegal. I really wonder how he came to this decision, since my entire argument in that area is that they are not prosecuting anyone! In fact, the legal test, as decided in case law, is whether it is a matter of the governments policy to "selectively prosecute" certain groups. In this case, the government's position has always been that Gray Marketing is illegal, yet they have not prosecuted one single person for it. The only people they have prosecuted are those doing modifications.
It is satisfying that my previous appeal, although still upholding my conviction, completely unseats the governments position with regard to channels such as HBO. Their position has always been that since there is no lawful distributor, and the law requires authorization from a lawful distributor, it is illegal to decode it. Thankfully, this judge didn't agree. He felt that the lawful distributor was an essential element of the offence. Also, since this decision came from a superior court, it is now considered to be LAW in Manitoba. All provincial court judges are BOUND by this decision.
The plastic cards recently have taken a walloping with some ECM's directed specifically at clones, and certain other software packages. It seems that most of what was affected was being freely distributed on the internet. Although at first glance the 'net may seem like a great way to share information, it really has a far greater detrimental effect. Part of the problem is the anonymity, anyone and everyone is there, including no doubt, the enemy. Also, if a dealer or wholesaler ends up getting his info at the same level as consumers and potential customers, how can he even compete?
The dealers are being cut right out of the loop. The attitude seems to be that everything should be free for the asking, and in the end it does nothing but hurt the industry as a whole. Some backyarder builds a programmer and gets internet software and can program cards for $50. He can buy systems and sell them cheap, too. Now the REAL dealers have to lower their price to compete. Soon nobody can afford to look after their customers properly, since they've made so little. Then when the ECMs hit, life gets real miserable.
A real tragedy has been the 99 fix. Instead of marketing it with a reasonable price tag, someone thought they were doing a favour by releasing schematics on the 'net. Overnight, the value of the '99' fix disappeared entirely. Again, dealers get cut out of the loop, and the general public has access to information they just shouldn't. And now that it is common knowledge, you can bet next time the ECM will do a lot more than '99' the cards. It may completely disable them and make them non-recoverable. At this point, there is software which has run right through the last 2 ECMs, and in fact has been running flawlessly for months. But you won't find it on the internet. And if you do, you can bet it won't stay up for long. It is just too public a forum. In fact, I think the only reason this software is running, is that it has never been on the internet. In fact, if you remember the raids of last year, a lot of the information they gained in those investigations was through the internet. Hell, they don't even have to get in their car!
Meanwhile, on the retail front, system sales are slowly recovering since the ECMs. Almost everyone who had a programmed plastic card was shut off, so the entire system gets a bad name as people all talk to their friends. Let's face it, the best sales tool is a system that just keeps on running. Just think of what last fall would have been like were it not for the battery card fiasco. Hopefully, the old datastream will last into the winter months, and make a good fall season. Even if there were a 4000 series hack, the confusion and time involved in upgrading all the systems in the field would make it very slow fall, not to mention the unscrupulous dealers who will try to get the maximum amount of money from people. This backwards mentality really hurts more than it helps. You make a dime, but lose a dollar in future sales. That old rumour mill has an incredible effect sometimes.