Downloading is theft!

Aractus 28, September, 2010

Well, I’m going to concentrate this entire blog article on just one aspect of piracy: Australian Law. Don’t get me wrong, I’ll cover the other important issues in a blog another day. But love it, or hate it, p2p filesharing is here to stay, so it seems.

I’m not a lawyer, or an expert on the law, so I only comment on cases. That doesn’t mean there isn’t a case that may be brought before court that is unprecedented – but as we all know for anything where a precedent will be relevant that particular case acts as our “legal advice” as you will.

What exactly is “Piracy”? Well according to some content owners, piracy is content theft. Theft, however, is usually a foreign concept in copyright infringement. At the moment there’s an ad campaign by the IPAF called “accidental pirate”. As per usual a pro-copyright group is trying to push the idea that copyright carries limitless rights. We’ll investigate this shortly.

Firstly, let’s talk a little bit about legal history. In 1987 Hanimex was a prominent blank cassette tape manufacturer. They ran ads which implied that “your recordings will last longer” with their product. A case was brought against them by WEA International, claiming that Hanimex was encouraging (or authorising) their customers to use their product for copyright infringement. At the conclusion of the case the Judge found in favour of the defendant. Sound familiar? It should. WEA International Inc v Hanimex Corp Ltd is strikingly similar to AFACT v iiNet, which was concluded in February this year in the High Court.

In May 2001, Warner Home Video attempted to introduce the “Retail Only” DVD in Australia. They printed “this disc is not for rental” on their retail DVD’s. They claimed they had every right to do so under the Copyright Act. As you would well be aware, Rental/Lending/Borrowing/Re-Sale is a secondary market, not a primary market. That is to say, what right do they have to tell you what you can and can’t do with a product you purchased? Well as you can imagine this pissed off the Australian Video Retailers Association (AVRA) and they took Warner to court over it, and ultimately following the Australian Video Retailers Association Ltd v Warner Home Video Pty Ltd High Court case Warner was forced to turn their “retail only” DVD’s into landfill. In February 2002 Warner again attempted to introduce the “retail only” DVD’s, this time claiming they had the authority under contract law (rather than copyright law). This time Warner settled with AVRA instead. Now this isn’t relevant to this blog, but Warner did eventually introduce two-tier pricing by releasing the rental version at an exuberant cost to retailers months before releasing retail.

Now, let me put this into legalistic perspective. As content owners they control the legal distribution (sales) to the point where it is actually illegal for retailers to import competing products from overseas publishers (although it is legal for CDs). Not being satisfied with this, Warner felt they were entitled to control the rental and borrowing market – a secondary market! That’s right, they don’t think you or I have the right to borrow/lend or rent retail products to others! Let alone the right to copy it!!

Roadshow Films Pty Ltd & Ors, better known as AFACT, attempted to bring a case against iiNet in the Federal Court of Australia, which was concluded in February this year in favour of iiNet. Many internet commentators have missed the point of this case entirely, some wrote before the fact that “iiNet would loose” others claimed it was a “landmark case”. Well, not really, no. You see, no one has ever been brought before a court for the “crime” of downloading and/or uploading (without profit) unlicensed copyrighted content on the internet.

AFACT’s argument was that iiNet should monitor their customer’s usage, and where they discover copyright infringement has taken place – or have been made aware that such an infringement has taken place – they should deliver a warning to the customer on the first offence and then disconnect the customer’s usage after the second offence. They further claimed that it was iiNet’s responsibility to do so as downloading illegal content is against their own Terms of Service.

Common sense tells you two things: number one, a company’s “terms of business” are theirs to enforce – or not enforce – in any way they see fit, there’s no obligation under their own terms to disconnect every single customer that breaks them, especially when they may prefer to keep the customer and hence keep getting paid by the customer. Secondly, it would be presumptuous and irresponsible of iiNet to disconnect users who download illegally when no court case has ever been brought against anyone for this “crime”. As there is no legal precedent to consider, why should iiNet punish users so harshly? Why would it be in their interests to do so? Surely if AFACT had a case to make they would make it against individual Australian users, right?

Common sense also tells you that customers would get pissed off by getting sued themselves by AFACT, and would be as a result less likely to purchase their products if the industry was behaving in such a menacing and forceful manner.

Music Industry Piracy Investigations general manager Sabiene Heindl said “Today’s Federal Court decision suggests that copyright owners broadly may have no choice but to sue individuals for illegal file-sharing. This would be a most unfortunate outcome.” Unfortunate? That you have to sue the person who’s actually infringing on your copyright? Really! Do you see landlords being sued by angry neighbours of their tenants? Or do they sue the tenant? Do the angry neighbours go and sue the Bank who holds the mortgage and demand that they discipline their client?

In conclusion I want to say this. The DVD format was supposedly designed for PC playback (PowerDVD predates the release of the format in Australia) yet it doesn’t use square pixels, and the PC does, it employs interlacing and telecine where such formats are unnecessary and unhelpful for PC playback as well as speed changes in the case of 24fps->25fps or 25fps->23.976fps. The most common video format in torrents is MPEG4 – that is DivX, XviD, etc; formats that are actually more compatible and work better with computers rather than with TV’s. The industry has had ample time to embrace this market, and has instead met it with “Bluray Disc” which – although it offers HD content – does not work as well or easily on computers as DivX, etc, and is designed in such a way as to make the product itself unduplicatible; while “pirates” are happy to convert into more “friendly” formats (DivX, etc).

Filesharing is simply a reality. It doesn’t infringe on copyright in an actionable manner, and the industry is doing themselves no favours by fighting it so hard. Don’t ever forget: they introduced region coding into DVD’s in order to prevent people from buying competing products; and then complained when they stated downloading competing products illegally on the internet! On what authority? Are they mad? After they tried to stop us purchasing competing products???

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