🚀 go-pugleaf

Kieron Briggs <kieron@abuzz.com.au> wrote in message
news:411ae35b$1_1@news.iprimus.com.au...
> 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.

Nope. Thats the evidence that you dont actually
have a clue about even the most basic law.

Your claim about what would be illegal cant possibly
be correct if it would produce that completely silly result.

> And while the courts may well reject such
> a wide interpretation (I am not a lawyer,

That is painfully obvious.

> but I would hope that judges would be reasonable),
> the cost of defending oneself in court can be huge,

The reality is that it would never get anywhere near a
court, particularly with that completely silly claim you
made about material which is public domain and which
requires the use of a circumvention device to access.

> even if one has a reasonable expectation of winning,
> especially since this is a criminal matter not a civil one.

Which means that there aint a hope in hell of it ever getting
to court. The DPP would just flush it where it belongs.

> Not just the direct financial cost, either,
> but also the cost in time, stress and so on.

You clearly dont have a clue about how criminal law prosections work.

> The issue is, that if such a wide interpretation is unreasonable, why
> does the language of the legislation allow such an interpretation?

Its the simplest approach. Only those pig ignorant of the most
basic law hyperventilate about that being any problem at all.

> 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.

Nope. More complete legal pig ignorance.

>>> 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;

Nope.

> this could have significant impact on the IT industry.

Nope.

>>> 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.

Then there's the real world.

>>> 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.

That is just plain wrong with that 'previously'

>> 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.

Wrong. The real world has moved on a hell of a long way on that.

> 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.

Then there's the real world.

> 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?

It doesnt.

>      Do the opposition's proposed ammendment
>      apply to new media or only to television/radio?

There is no aust content requirement with 'new media'

The opposition's proposed amendment JUST enshrines in
legislation the current ABA content requirements, essentially
so the parliament gets a say on changes in the future.

>      What about web-streaming, does that count as broadcast?

Not as far as aust content is concerned.

>      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.

Nope, because the aust content rules are way past their useby date.

They dont apply to movies and DVDs and CDs etc.

>      Does the section on cross-border trade in services
>      change anything from Australia's point of view?

Nope.

>      As an IT contractor, am I going to face  increased competition
>      from all those out-of-work American programmers?

Nope, the real competition will come from places like India.