Copyright questions in Oz
p2pnet.net News:- In Australia the Federal Government is looking at introducing a fair use style exemption to our copyright law. Yes, I know. It’s hard to believe, but in Australia you can’t legally back up your music CDs, or even rip a CD you’ve paid for, so you can convert it into an iPod compatible format. You can’t even legally use your VCR or DVD recorder to record “Lust” or “Horny Housewives” so you can watch these TV programs later. Talk about a nation built on piracy. Ooops! I mean time shifting.
Personally, I’ve always thought it didn’t really matter much/ It’s like spitting, or not voting in elections, or jay walking – no one would ever be charged and prosecuted for such trivial offences. But hang on. In Oz, voting is compulsory and we get fined for not voting. (Wonder what Al Gore would think of that?) And a message for tourists – don’t jaywalk in North Sydney! As for spitting, just say No. Go with farting instead..
But seriously, I always thought the Australian Federal Police (AFP) would never waste their time on trivialities such as a kid who allegedly linked to a website involved in “unauthorised copying” or a kid who’s burned CDRs which are “discovered” around the house when the family home is raided. After all, the AFP’s stated priorities are combatting organised crime, transnational crime, money laundering, major fraud, illicit drug trafficking and e-crime. Its operational slogan is, “to fight crime together and win.”
Where does it say combatting website linking and burning CDs for personal use (if it took place)?
I even wonder why would the AFP even get involved in a low level case of alleged (there’s that word again) copyright infrignement? We’ve seen many cases run by the local recording industry without the AFP’s help in the past few years. The list is long and expensive: the Kazaa case, the Universities case, the Little Ripper vending machine case, the Swiftel ISP case, DJs, company employees, and Uni students.
So why would the AFP use public money to protect the IP rights of major record companies, when the majors have shown they’re so effective at protecting themselves without AFP help?
The worried mother – and her son
With all this in mind, I was very surprised when I recently received the following email from a worried mother (whose name I have withheld, along with her son’s name, as per her request):
Alex … I have been trying to contact you ever since I saw your op-ed piece in the Age on Monday. In it, you say "it is unlikely that the Australian Federal Police would ever investigate anyone for illegally copying a CD", however something almost like this happened to my son, XXX. When he was 12 years old, he put a link to WMA land on his website. He updated the link and added a few direct references to songs from time to time until he was about 15. When he was 16, 8 Federal police raided our house looking for our "distribution network" and now that he is 18 he is being prosecuted. The first hearing was originally set for yesterday but his lawyer has had it deferred. The salient charge is "aiding and abetting" the WMA land site. (The group of Federal Police included a (sic) ARIA representative who was seconded from Sony) … I would be pleased if you could let us know if there is anything you think he can do to prevent his prosecution. This seems grossly unfair and a version of using a mallet to kill a gnat.
In a further email, she tells me:
The thing that really freaked me out was having 8 federal police raid the house 18 months ago, and spend three hours going through all the computers and the dust under my son’s bed. The also looked in the clothes dryer every time they walked past.
The case has now received some mainstream media coverage.
The defendant is charged with actions he’s said to have undertaken when he was a minor:
Distribution of an Infringing Copy of a work in which copyright subsists, contrary to section 132(2)(b) of the Copyright Act 1968 (5 counts), and
Aid and Abet the Distribution of an infringing Copy of a work in which copyright subsists contrary to section 11.2 of the Criminal Code Act 1995 & Section 132(2)(b) of the Copyright Act 1968 (14 counts). These counts relate to the same works over which Charles NG was charged, in the operation of the MP3/WMA Land website.
An Australian first
This case is significant for a number of reasons:
(1) It’s the first time that a minor has been prosecuted in Australia by the Federal Government for linking to a website alleged to be involved in copyright infringement,
(2) It’s the first time that a minor in Australia has been prosecuted by the Federal Government under the “aiding and abetting” provisions of the Copyright Act, and
(3) It’s the first time that a minor has been subject to any kind of enforcement proceedings in Australia, in relation to internet based copyright infringement.
In fact, it reminds me of the infamous US case against Brianna LaHara, who was only twelve when she was sued by the RIAA (Recording Industry Associaiton of America) for copyright infringement.
Lot’s of firsts. But should Australians be proud?
Criminal not civil
In this case, a minor is being subject to criminal proceedings. This means if he’s found guilty, the penalties could include imprisonment and/or a substantial fine.
Irrespective of the result, even when the criminal proceedings are complete, it may not be the end of the matter. The minor may become a respondent in civil proceedings commenced by the ARIA (Australian Recording Industry Associaiton) and/or its ‘members’.
Potentially, the minor could then be treated the same way as the recording industry’s other past targets (Kazaa, etc.)
He could easily be 30 and broke by the time it may be all over!
The real issue?
So what’s the allegation?
The minor is alleged to have linked to the MP3 WMA Land site. He’s also alleged to have some CDRs lying around his house when the family home was raided. Some of them may have had some sound recordings on them. Or maybe not …
MP3 WMA Land may have been involved in illegal activity. Even if the website conducted illegal operations, should this minor be tried for aiding and abetting in these operations?
- Did he commence the operations of the MP3 WMA Land website?
- Did he control the website’s operations?
- Did he profit from the website’s operations?
- Was he even aware that the website’s operations could be classed as illegal?
- Even if the minor did some or all of things which are the subject of these proceedings, why is he being prosecuted? Wouldn’t his actions simply have made him one of many?
- How many other members of the public have burned CDs, and are they being prosecuted?
- Is this minor simply a preferable target compared to other individuals because he lacks financial resources, and is less likely to be able to afford the best legal representation available?
So many questions. So few responses.
Fair use and this case
Recently the Australian Federal Government announced a review of the Copyright Act. The Government is considering the introduction of fair use provisions in the Copyright Act. This case is relevant to that review – it proves that:
(1) The recording industry cannot be trusted to responsibly protect their intellectual property rights, and
(2) Australian consumers need an effective fair use exemption in order to protect themselves from unjust prosecution by public authorities.
Six weeks and a leaky boat
The former manager of MIPI, the ARIA’s anti -piracy unit, Michael Speck has repeatedly stated that Australians wouldn’t be sued for non-commercial infringement of recording industry copyright. Whatever else you say about him, he was a man of his word, and no personal users have been sued by the ARIA.
In this regard Australia has differed to other jurisdictions. For example, in the US more than 10,000 individuals have been sued by the RIAA for file sharing. Individuals have also been sued in the UK, but so far no one has been sued for file sharing in Australia – as per Speck’s statements.
However, Speck resigned from ARIA about six weeks ago, and now we find an individual is already being prosecuted for linking to a site which may or may not be associated with file sharing.
So, will Australians now be sued for backing up their CDs?
Will Australians be sued for ripping CDs they have purchased so that they can burn their own compilation CDs?
Will Australians be sued for transferring their vinyl collections to CD?
What if their vinyl “treasures” have never been released on CD?
What if the vinyl and/or source CDs have been deleted by the record company concerned, and could not be replaced if they were damaged or lost? Will all of them be sued … or only the teenagers?
What happens if the ARIA is successful in their current Kazaa case? A company called Media Sentry was used by Sony Music Australia and Universal Music Australia to collect personal information about 300,000 potential personal infringers in Australia. Tom Mizzone, vp of data services for Media Sentry, testified that 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. Wilcox J. asked if Media Sentry were spying on people.
Mizzone said “We look for people who are sharing or distributing”.
What will ARIA do with the information collected by Media Sentry?
Will Media Sentry’s evidence be used against individuals in proceedings against Australians, similar to those undertaken in the US? Will ARIA ask for subscriber details from ISPs like their US counterparts?
Will the ARIA, like the RIAA in the US, the CRIA, in Canada, and BMI in the UK, follow the lead of the IFPI and commence enforcement actions against individuals?
Again, so many questions. And the silence is deafening.
The invisible hand
So far the ARIA has said little about fair use. With only three weeks to the deadline for submissions to the Government enquiry, they wouldn’t want to show their hand too early! Fact is, unless Oz gets some real changes to its Copyright Act including the introduction of a real fair use exemption, the scope for any future law suits by the ARIA will remain unacceptably wide.
Comments are due by June 30, and I encourage anyone with an interest in this to make a comment.
Prosecuting a minor – it’s a real eye opener. The case tells us that the copyright defenders will barge through any door – even if it’s only slightly ajar.
It’s up to all of us to use the fair use shield to help slam at least some of those doors shut.
Alex Malik
[Malik specialises in intellectual property rights enforcement. He's also an ex-ARIA in-house lawyer and former senior legal officer at the Australian Communications Authority, Canberra.]
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Something you think we should know? tips[at]p2pnet.net
See:-
MP3 WMA Land – MP3 WMA Land, 2005, p2pnet, June 8, 2005
June 9th, 2005 at 4:06 pm
i live in australia, i know our copyright laws are a joke but i had no idea it was this bad. this is absolutely disgusting, i have been ashamed to be an australian before but this just crosses the line. prosecuting a minor for something as pathetic as that? honest to god, without file sharing half of today’s music artists wouldn’t have half the recognition as they do now.
to be able to be prosecuted for backing up a music CD you have bought is down right absurd, for god’s sake the law allows us to backup software we have bought why on earth aren’t we allowed to backup music? no being able to rip music is even worse, we aren’t allowed to do it but they don’t ban iPods or any other MP3 players? what a joke! somewhat condesending as well if you ask me. if you’re going to sue this person for linking to an mp3 site, why not sue apple for releasing the iPod? or better yet, sue Creative for bringing out the first mp3 player. hell, while we’re at it, let’s all get together and sue microsoft for releasing software which allows the user to rip a cd simply by pressing the big button labeled “RIP” at the top of the screen? i’m sure the australian reputation will get a right kick out of that!
the actions undertaken by the australian government in the forementioned article are absurd, disgusting and downright loathsome! no longer will i be a ‘happy australian’ as the stereotype so labels me, but instead i will be a bitter, angry resident who will have great difficulty in expressing the words “you’re safe in australia”. the enemy is in control.
please post this comment so everyone can see. feel free to e-mail me at trycatchavibe@hotmail.com
June 10th, 2005 at 10:31 am
Nice to see ARIA are keeping some perspective on who they prosecute and are clearly going after some key perpetrators!
[That was sarcasm by the way, just in case anyone thought I had lost it.]
This is just another example of how this insidious global organisation focusses only on soft targets for maximum media effect and income. The sooner respective governments wake up and smell the coffee and legislate against this behaviour the better. [Like that's ever going to happen...]
June 22nd, 2005 at 11:08 pm
“insidious global organisation focusses only on soft targets for maximum media effect and income”
Actually, on the “income” side of things, the soft targets are not good for recovering losses. It’s the big fish like Sharman which are good for that. The little fish will be detered with landmark cases which show all of them that they are within reach, are being watched and may have action taken against them.
Once the fright has set in on a large percentage of infringers, music lovers will move back towards weighing up the music they want against the money they have.
People should vote with their dollars and words. If you find some music you would like to buy is too expensive, don’t buy it and instead write a letter to the label informing them of your potential demand for that product but refusal to buy on account of the high price. If all you do is just not buy the CD (without writing), then they will not know the true height of the demand. Worse still, if you infringe on the copyright of that music, you show them the demand for it and the money they did not recover.
As long as people infringe the situation will not get better. Infringing and trying to apply rationale on the act is useless, because the fact is that it is illegal, the labels see it as that and are unlikely to listen to “reason” from people conducting illegal activities against them. It’s like holding them at ransom when they have the power.
People infringing via P2P have electricity bills, internet bills, often line rental bills, comparatively expensive computers, often CD or DVD burners plus the blank media which goes with them and often mp3 players. Yet they won’t buy audio CDs? Most of these things are luxuries! People don’t need music to survive. Music is a luxury, a want. If you want something which costs money, you pay for it. If you feel it is too expensive, stealing it is not a valid response.
I do want to see fair use in Australia. To allow the legal use of mp3 players and backup up purchased media. I feel for the young man in hot water at the moment, but people need to realise and warn thier children, that illegal acts performed in public (the internet) can have dire consequences and being in public are easily caught.