🚀 go-pugleaf

Sylvia Else wrote:
> 
> Kieron Briggs wrote:
> 
>> Schedule 9, item 154: This creates a new criminal offence 'significant
>> infringement of copyright'. This is of concern to software developers
>> because it makes conduct that _results_in_ copyright infringement, even
>> if that conduct is not in itself an infringement of copyright.
>>
>> For example, if Alice writes a software program to play music from a CD,
>> and then Bob uses that software to copy a CD to his hard drive and makes
>> it available over a P2P network, then Alice could be charged under the
>> new offence, even though it was Bob that infringed copyright.
> 
> I don't think the courts would be willing to interpret "results in" that 
> widely, particarly in the context of a criminal offence. Such a wide 
> interpretation would outlaw pretty much every activity associated with 
> making and selling computers.

Which is exactly the problem. And while the courts may well reject such 
a wide interpretation (I am not a lawyer, but I would hope that judges 
would be reasonable), the cost of defending oneself in court can be 
huge, even if one has a reasonable expectation of winning, especially 
since this is a criminal matter not a civil one. Not just the direct 
financial cost, either, but also the cost in time, stress and so on.

The issue is, that if such a wide interpretation is unreasonable, why 
does the language of the legislation allow such an interpretation? It 
could easily use more restrictive language to avoid such ambiguity, yet 
it chooses to use the phrase "results in". Ambiguities like this mean 
that software developers will be in uncharted water until caselaw is 
built up to determine the extent of the phrase.


>> Schedule 9, item 186-9: These items extend current copyright law to
>> include temporary copies of data (for example, the chunk of audio data
>> held in RAM by your CD player). 
> 
> Which is neither the complete work, nor a substantial part of it.

Maybe. I'm not sure how much of a work would need to be cached before it 
would be considered a 'substantial part'.

Keep in mind, also, that how much of a work is cached depends on the 
length of the work and the amount of available memory (amoung other 
things). If I've got a compressed audio stream of a 3 minute song (for 
example), it might come to around 3 megabytes or so with reasonable 
compression technology (like MP3 or Ogg Vorbis). It's entirely feasable 
that my player software might be able to fit that complete work into 
it's RAM cache.

This kind of case has gone to court at least once already:

     The current law on this issue was considered in the Federal
     Court case, Kabushiki Kaisha Sony Computer Entertainment &
     Ors v Eddy Stevens (the Playstation case). Based on the
     current definition of material form, that case held that a
     reproduction to a form of storage which is `ephemeral or
     volatile' and not capable, with existing technology, of
     further reproduction to a more stable form, is not a
     copyright violation. The relevant issue in that case was
     whether copying of data from a CD-ROM onto the RAM (working
     memory) of a games console constituted reproduction in
     material form.

(page 22 of the document I referenced). With the changed made by the FTA 
implementation bill the Playstation case may well have gone the other 
way; this could have significant impact on the IT industry.



>> Although copying "as part of a technical
>> process of use" do not infringe copyright, the definition of "use" is
>> muddy enough that things like moving a song to an iPod (etc) may be
>> infringing, due to the copies made in the computer's RAM, the 
>> USB/firewire chipset buffers, the cable itself, and so on. This may have
>> significant impact on the way software is able to access such data,
>> especially in the future as new forms of storage are developed.
> 
> Again, I can't see the courts adopting a narrow interpretation.

And again, the problem is the ambiguity, which could be avoided by a bit 
more care in the language chosen.


>> These items also do not exempt copying as a process of use where the
>> original is infringing. This means that an end-user of 'pirated' 
>> material becomes infringing, where previously it was only the person who
>> produced the original who was infringing.
> 
> I don't really see the objection to catching this conduct. In the case 
> where the infringer didn't know that the original was infringing, and 
> could reasonably believe that it was not, the defence of honest and 
> reasonable belief would exist, so it's not as if this criminalises 
> innocent people.

ON page 23, the author of the document I referenced describes the 
objection to this. The basic problem is that copyright is supposed to be 
about, literally, the "right" to "copy"; it's not supposed to be about 
the right to use. Also it violates the principle of 
techonolgy-neutrality, because use of non-digital infringing works is 
not itself an infringement but if those same works are represented in 
digital form it would become an infringement. Regardless of the moral 
aspects, that kind of inconsistency makes for bad legislation.

Interestingly, this particular change isn't actually required by the 
text of the FTA, but has been inculded by the drafters of the 
implementation bill. Such a significant change to the scope of the law 
surely warrents more community consultation.


There are also other questions I have regarding the agreement that 
involve the IT industry but I don't have the knowledge to answer. For 
example,

     How does it affect quotas for Australian content? Do the
     opposition's proposed ammendment apply to new media or only to
     television/radio? What about web-streaming, does that count as
     broadcast? This doesn't seem very important now, but will become
     more and more so in the future as these kinds of technology grow
     more widespread.

     Does the section on cross-border trade in services change anything
     from Australia's point of view? As an IT contractor, am I going to
     face increased competition from all those out-of-work American
     programmers?



Kieron Briggs
Web Admin, http://www.andrewwilkie.org.au/
Proudly a member of the Ryde Epping Greens