Comment 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 have 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 … oops … I mean time shifting.

Personally, I 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. Hang on, in Oz voting is compulsory and we do 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 please avoid open flames.

But seriously, I always thought that 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 has burnt 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. The AFP’s operational slogan is: “To fight crime together and win.” Website-linking and burning CDs for personal use (if it took place) are simply not the type of activities hinted at by this slogan.

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 that they are so effective at protecting themselves without their 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 the following offences:

• 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.

The defendant has been charged for actions he is alleged to have undertaken when he was a minor.

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

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