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Oz court case exposes lack of fairness

Teenager charged over website linking

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An Australian first

This case is significant for a number of reasons:

  • It is 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
  • It is 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
  • It is the first time that a minor has been subject to any kind of enforcement proceedings in Australia, in relation to internet based copyright infringement. This reminds me of the infamous US case against Brianna LaHara, who was only 12 when she was sued by the RIAA in the US for copyright infringement.

Lot’s of firsts … but should we be proud?

Criminal not civil

In this case, the minor is being subject to criminal proceedings. This means that if he is found guilty the penalties may include imprisonment and/or a substantial fine. Irrespective of the result, once the criminal proceedings are complete this may not be the end of the matter. The minor may be a respondent in civil proceedings commenced by ARIA and/or its members. Potentially, the minor may then be treated the same way as the recording industry’s other past targets (Kazaa etc.) The minor will be 30 and broke by the time it may be all over!

The real issue?

So what is 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 burnt 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 little response.

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, ARIA’s anti -piracy unit, Michael Speck repeatedly said that Australians would not 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 ARIA. In this regard Australia has differed to other jurisdictions.

For example, in the US in excess of 10,000 individuals have been sued by RIAA for file sharing. Individuals have also been sued in the UK, Canada and other jurisdictions, but so far no individuals have 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 that an individual is already being prosecuted for linking to a site which may or may not be associated with file sharing.

So, will Australians 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 ARIA is successful in their current Kazaa case? We heard in that case that 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 ARIA, like RIAA in the US, CRIA, in Canada, and BMI in the UK will follow the lead of IFPI and commence enforcement actions against individuals? Again … so many questions and the silence is deafening.

The Invisible Hand

So far, ARIA has said little about fair use. With only few 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 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 is 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 is a lawyer, music industry commentator, and academic researcher at the University of Technology in Sydney. He is currently undertaking a PHD in law, with a specialisation in copyright law in the digital age. He can be contacted at Alex.Malik@student.uts.edu.au

Related stories

RIAA keeps 12-year-old quiet with $2,000 bill
The RIAA sees the face of evil, and it's a 12-year-old girl
Oz iPod users denied access to quality pop
True stories from under the bar table - the Kazaa case concludes
Kazaa Oz lawsuit wows the crowd

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