p2pnet - rss feed: Australian copyright criminals
p2pnet.net News:- To start with - a hypothetical question … What would you do if you knew there was a law in existence that you knew to be hopelessly dated and utterly irrelevant? Further, you knew that the law was inconsistent with international practice. You didn’t believe anyone would ever enforce the law, but in the back of your mind there was a gnawing fear … what if they did enforce the law?
Now … consider Australia’s copyright laws. Australia’s Copyright Act dates back to the 1960s – it predates colour television, FM stereo radio and of course the internet. While there have been substantial changes to the Act in recent years – as a result of both the Digital Agenda amendments and the US/Australia Free Trade Agreement amendments, in some ways the law remains very much the same as when it was first enacted.
Currently, as an Australian consumer there is a bunch of things you can’t do under the Copyright Act which your friends in America (for example) can do. You can’t time shift on your VCR (record a program now, so that you can watch it tomorrow). You can’t purchase a CD, rip it, and then convert it to a digital file, so that it can be played on a digital player. Finally, you can’t make “backup” copies of your legitimately purchased music CDs either.
Recently, I wrote about the lack of availability of many hit songs such as Jesse McCartney’s recent national #1 single from authorised digital music providers in Australia. This means potentially, any Australian with Jesse’s song on their digital music player has broken the law. So what if you shelled out $30 for a Jesse album? You still can’t rip it, and No, you can’t have your money back! If you’re the one with the Jesse song on your iPod, welcome to the world of copyright infringement. Remember, we’re not just talking kiddie pop. In most cases you can’t legitimately download classic hits by acts such as the Beatles either.
If you take pride in your eclectic CD collection, there’s a good chance you’d want to protect your babies. Maybe when you go for that drive, rather than taking your favourite CDs with you, you’d rather burn a copy and take that with youin case the original gets scratched or thrown in the sand. Or perhaps you’d do the modern version of the mix tape – the digital mp3 compilation CD. This isn’t a new concept. I remember I gave a former girlfriend a mixtape. I thought it was cute and very personal … she thought it was cheap. (I did say former. Maybe I shouldn’t have used a “G-Tape”, the TDK “ADXs” were always better.) In any event, all of these actions are potentially illegal under current Australian copyright law.
Effectively, Australian copyright laws have turned Australians into a nation of copyright criminals and intellectual property “pirates”. Where’s Johnny Depp and Douglas Fairbanks Jr. where you need them? It’s unlikely the Australian Federal Police would ever investigate individuals for offences such as illegally copying a CD or making a mix. However copyright owners could commence proceedings against individuals who for example, burn MP3 CDs for personal use, from music they have purchased, at any time. If the law is on the books, it can be used.
Trust … or not?
So, should we trust the recording industry not sue individuals for backing up their CDs or making MP3 copies of CD singles they have purchased?
In Australia, in the past, no individual has ever been sued by the recording industry for the non-commercial downloading of music or burning of CDs. I asked MIPI’s Michael Speck about this from time to time as part of my PhD studies, and he always told me the ARIA’s targets would be commercial, such as those companies who profit from illicit downloading, in ARIA’s view. Speck and I have disagreed about different things from time to time and these disagreements can be traced back to the time when we both worked for the same masters.
However, I always found him to be a man of his word. Anyway, Speck has resigned from MIPI and we’re left with the current ARIA ceo Stephen Peach and Speck’s replacement. I understand Mr Peach was asked whether or not individuals would be the target of internet based copyright infringement proceedings. Apparently, he was unavailable for comment. While we wait for an answer from the ARIA, let’s examine their actions, and the actions of their international counterparts.
Overseas, 10,037 people have been sued by the RIAA in the US since September 2003, for sharing music with each other online. Minors have been the subject of legal proceedings Locally, the ARIA wields their Anton Piller (civil search) powers with great effectiveness, as we’ve seen in the Kazaa case and in other cases. We’ve seen private homes raided. ARIA’s members have also supported clunky copy protection on CDs. We’ve also seen that the ARIA’s members have supported the lodgement of dummy or spoof music files on peer to peer systems, which in many cases have made p2p systems unworkable.
During the Kazaa case we heard testimony from the Business Affairs Directors of Sony Music Australia and Universal Music Australia on the actions of companies like Media Sentry. Tom Mizzone, vp of data services for Media Sentry also testified in the Kazaa case. Mizzone said his New York company was asked in March, 2003, to search Kazaa for users located in Australia and download evidence they were swapping copyrighted material.
Up to 600 scanners were turned to the task, and the internet addresses of the users recorded and checked against a database of internet service providers in Australia.
Justice Murray Wilcox asked if Media Sentry were spying on people. Mizzone said “We look for people who are sharing or distributing”.
The ARIA’s top priority is to serve its stakeholders, whom we know to be the major record companies. There is nothing inherently wrong with that.
The majors own the majority of shares in the ARIA, and hold the key positions on the ARIA’s Board. The majors also hold the majority of positions on the ARIA’s important decision-making committees, the Copyright Committee, the Finance Committee and the Marketing/Chart committees. Returns to shareholders are crucial to the ARIA, and that includes maximising Award show ratings, license fees, and maximising the entertainment dollar market share for the recording industry. Consumer rights are not at or near the top of the ARIA charts!
As far as potential targets for ARIA law suits are concerned, currently it’s a matter of trust.
The law says (for example) individual consumers with mp3 CDs could be sued by copyright owners, but so far the ARIA hasn’t sued them. In the wake of organisational change at the ARIA, should we trust that there won’t be a change in ARIA policy? What ifit’s successful in the Kazaa case? Should we trust that they won’t go after private users? After all, …ARIA has targeted Kazaa, vending machine developers (Little Ripper), ISPs (Swiftel), Universities, DJs, employees of companies, students…. Who’s left?
The Review
The Federal Government has announced a review of Australia’s copyright laws, and this will focus on fair use issues. This is excellent news for anyone who works in any of the creative industries or is a music consumer. It means that as individuals, we can all put in our two cents worth. You don’t have to be a lawyer or high priced lobbyist to let the Federal Government know if you think Australia’s copyright laws need effective fair use exemptions. The Federal Government has also provided Australians with an opportunity to take trust out of the equation, and effectively take the decision about potential infringement targets out of ARIA’s hands.
So, if you think you should be able to back up your limited edition “Jesus and Mary Chain” live CD, or your Pearl Jam “Daughter” CD single, tell the Federal Government. It’s not like you didn’t pay for it in the first instance … And if you don’t want to risk damaging your Led Zep box set while you drive up to Byron, tell the Government you want to be able to make a compilation CD for your car on your home computer without being branded a copyright criminal.
While so far I’ve focused on music, this review is more than about music or other forms of content. It’s about consumer rights and their ability to take advantage of opportunities created by the development of new technology.
When I lodge my submission, I’ll suggest that while there’s no “perfect” balance between the rights of consumers and content owners, a good start would be a levy on blank CDRS/DVDs and possibly on hardware. Such a levy would provide significant remuneration to songwriters, music publishers, recording artists and musicians, and record companies for the use of their musical works and sound recordings.
This levy could be accompanied by a liberalisation of Australia’s copyright laws which would allow legitimate backups when the source CD has been purchased, or has been downloaded from an authorised supplier. That way, if you purchase a so-called legitimate download, it should have the same effect as if you’d purchased the CD single. Levy proceeds could be shared by copyright holders. Such a levy would effectively recognise that people will behave in a particular manner, irrespective of what a 35 year old law says (or omits to say). At least this way, artists can benefit from CD backups being made by consumers.
The levy concept isn’t new. Canada already has one for digital media, as do many other countries. In Australia, many groups and individuals have said that they support such a levy, such as APRA, Screenrights, and the Australian Copyright Council. I wouldn’t pre-empt anything they may wish to say in this debate, but see, for example:
http://www.screen.org/Submissions/PrivateCopying/acc_case.pdf, http://www.copyright.org.au/pdf/acc/articles/PrivCopDiscPprAV.pdf, http://www.themusic.com.au/im_m/archive/2004/040615-409_tripp.php, and http://www.themusic.com.au/im_m/archive/2004/040629-411_tripp.php.
Other groups oppose such a levy, such as the ARIA which has said “a blank media levy … is strongly opposed by the record industry, both here in Australia and internationally”. The ARIA has many reasons for supporting the status quo. It complains that such a levy would result in “inadequate financial returns”. Iin other words, the ARIA would have to split proceeds with other content owners and rights holders, and their share would be too low! According to the ARIA, such a levy would be anti-competitive, and the process of allowing non-infringing consumers to obtain a refund would be “cumbersome”. It’s also concerned about applying a “credible” process for distributing any revenues collected from such a levy. This is a surprising criticism given the credentials of the PPCA, which is the recording industry’s own collecting society.
For more arguments opposing such a levy, see the ARIA website, but don’t go back too far in history! In the late 1980s and early 1990s the recording industry supported a blank tape levy. The tax - I mean levy - was declared unconstitutional by the High Court in 1993, much to the chagrin of the recording industry which at the time was looking forward to a substantial revenue stream arising out of the scheme. No one from the ARIA has explained why its position has changed since 1989.
While the tools of infringement have changed since 1989, copyright infringements continue to take place by ordinary consumers. Instead of the Sony Walkman and dual deck VCRs, we have the Apple iPod and DVD recorders with built in hard discs. Broadband, podcasting and streaming are becoming increasingly important. Who knows what technology will bring us as consumers in the next decade. Substantial legislative change including the introduction of fair use rights is necessary for Australia, in order for consumers to benefit from the technological changes that the future will bring. Best of all, we can participate in this process of legislative change!
So far, Australian consumers have missed out on the introduction of iTunes, while the list of countries with iTunes reads like a United Nations membership list. The latest countries to join the iTunes family are Denmark, Norway, Sweden and Switzerland. Hopefully, the Australian iTunes service will commence before the proposed services for Albania, Eritrea and Azerbaijan!
What else will Australian consumers miss out on as a result of our antiquated copyright laws and the resistance of major record companies to change?
How can you make Australia’s copyright laws fair?
(1) You don’t need to be an academic, lawyer or have a vested interest to make a submission. You don’t need to use complex jargon or legalese. Don’t be intimidated by this process – it’s designed so the public can contribute to the process.
(2) Examine the issues paper and press release here and here
(3) After you’ve looked at the papers, think about the issues and make up your own mind about what you want to say. You don’t need to focus on all of the issues in the paper – only on the issues that are important to you. A submission can be as short as long as you like. There is no word limit. It can contain references and footnotes, but it doesn’t have to.
(4) If you have a music industry background, or are a recording artist don’t forget to tell the Government about your background. They are especially interested in people working “at the coalface” of creativity.
(5) For once, the Government wants to know what you think. Make sure your submission is a serious document. Leave the jokes and humorous anecdotes for the pub. Do a spelchec!
(6) Submissions are requested by 1 July 2005. If you can’t make the deadline let AGs know in advance and ask for an extension. Submissions should be sent to:
Ms Helen Daniels
Assistant Secretary, Copyright Law Branch
Attorney-General’s Department
Robert Garran Offices
National Circuit
BARTON ACT 2600
Submissions should be provided electronically. Email your submission as an attachment to michelle.tippett@ag.gov.au. If you have any questions concerning this review, contact Norman Bowman by email at norman.bowman@ag.gov.au or by telephone 02 6250 6324, or facsimile 02 6250 5929.
(7) When you write your submission give it the title “Submission to the Federal Government’s review on fair use and other copyright exceptions”. When you email your submission to AGs you can use the same title in the subject line. The first line of your submission should say something like “I wish to make a submission to the Federal Government’s review on fair use and other copyright exceptions. I allow you to reproduce or quote from this submission.” If you’re lucky, they might quote you in the final report!
(8) Finish with the sentence, “I look forward to the opportunity of speaking to the Committee on the important issues raised in this review.” If you’re even luckier they might invite you to speak to them!
(9) There are some individuals in the market place who would like to make this issue even more complex than it already is, because the complexity reaffirms their position of importance. Leave the spin for the spin doctors. If someone with a vested interest offers to help you or write the submission for you, say no.
(10) When you have lodged your submission, send a copy to the webmaster here at tripp@immedia.com.au. The webmaster supports this process of Government consultation and may consider publishing some of the submissions as they are received.
Alex Malik
[Alex Malik is a lawyer, music industry commentator and academic researcher at the University of Technology in Sydney.]
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Something you think we should know? tips[at]p2pnet.net
See:-
lack of availability - Aussies driven to downloading, p2pnet, April 19, 2005
10,037 people - 10,037 people sued by RIAA, p2pnet, May 1, 2005
