OzHub, the Macquarie Telecom-led cloud computing alliance, has come down firmly on the side of Optus over the copyright controversy surrounding Optus TV Now, warning that any moves to change the law "risk branding Australia a global luddite state."
As far as I can see, the problem is that copyright is inherently a civil concept, not a criminal one. If someone wants to waste their time and money by making 1000 copies of a DVD they have just purchased, no one has been harmed by that act. The copyright owner has suffered no loss, as it is clear that it would not have sold an additional 999 DVDs if the copying hadn't occurred. Why should the individual face civil, let alone criminal sanctions?
But if that person attempts to sell or give away any of those copies, the situation changes. Whatever the circumstances, and quite apart from any civil case the copyright owner might be entitled to bring, there is an element of 'passing off'. Even though in the case of digital content the copy might be a perfect bit-for-bit replica, or an item of clothing might be made in the same factory using the same patterns, processes and raw materials are the authorised product, there is still a sense in which they are not 'the real thing'.
It seems to me that the public interest would be better served by specifically strengthening laws against counterfeiting rather than this more general reference to intellectual property. The danger comes from fake medical equipment, automotive parts, drugs, electrical equipment and so on, which can have a very real impact on people's health and safety.
To be fair, the proposed changes do emphasise this aspect (and the life sentence would apply where the copying "recklessly or knowingly causes or attempts to cause death"), but lumping them in with measures that could conceivably be used against an individual that uses BitTorrent to download an unauthorised copy of a TV show because they forget to set their PVR the night before is hardly likely to foster public support.
And the new penalties would include "forfeiture [of] any property used or intended to be used in any manner or part to commit or facilitate the commission of a Federal copyright infringement offense". Where will the courts draw the line in interpreting this? If Mr and Ms Public fear they might lose their computer - let alone their house - for a trivial and commonplace activity, you can bet they'll be setting their elected representatives on notice rather than changing their habits.
Worryingly, the proposal comes close to creating a 'thoughtcrime' by making it a criminal offence to attempt to infringe copyright. A person who makes a copy that they think is infringing perhaps could be found guilty even if the copying is actually legitimate because the original is out of copyright or some exemption applies.
Sometimes a sledgehammer is the right tool to fix a problem - but when it isn't, using one results in additional damage.
David Frost
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