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Recent Comments

Monday, 09 February 2009 00:58

Since When was Copyright Infringement 'Theft?'

When a person takes the property of another person, with the intention of permanently depriving them of the use of it, that's "theft."  And in the eyes of the law, it's only theft after a conviction is recorded.

You'd think that an organisation dedicated to the preservation of the legal rights of copyright holders would have a better grasp of the law than they appear to do.

Allow me to quote from the website of AFACT (The Australian Federation Against Copyright Theft): "The Australian Federation Against Copyright Theft was established in 2004 to protect the film and television industry, retailers and movie fans from the adverse impact of copyright theft in Australia. AFACT works closely with industry, government and law enforcement authorities to achieve its aims."

This is the BIG LIE perpetrated again people all around the world.  Every organisation in the same ilk as AFACT maintains the same half-truth as if it were cast in stone.  They equate "copyright infringement" with "theft."  The word is even welded into their name.

Allow me to get all legalese on you.  According to section 72 of the Crimes Act in the State of Victoria, the "Basic definition of theft" is:

(1) A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

(2) A person who steals is guilty of theft; and "thief" shall be construed accordingly.

If you don't like that one, try going to Dictionary.com:

"Theft: The act of stealing; specifically, the felonious taking and removing of personal property, with an intent to deprive the rightful owner of the same; larceny.

"Note: To constitute theft there must be a taking without the owner's consent, and it must be unlawful or felonious; every part of the property stolen must be removed, however slightly, from its former position; and it must be, at least momentarily, in the complete possession of the thief."

I don't see any significant difference between the two.  Do you?

So, in the context of copyrighted material, what exactly is stolen that the owner is permanently deprived of?

Aside from a $0.10 disc in a plastic case, they have lost nothing.

And when it comes to illegal downloads, they've not even lost that.

Now, I'm not saying that copyright infringement is legal, far from it.  The legitimate owner of copyrighted material always has control over how it is used.  I'm simply protesting the use of the highly emotive term "theft" to describe the specific incident.

IT IS NOT THEFT.  Never has been, never will be.  The problem is that the word 'infringement' is too 'mealy-mouthed' for the copyright fascists to brandish around as they act all high and mighty.

Over the past couple of months both the technical and popular press have been all a-buzz over the iiNet legal case.  In case you've been living in a cave somewhere, on November 20th last year a consortium of seven film companies, along with the Seven Network filed legal action against iiNet (the third largest ISP in Australia) to enforce them to disconnect users accused of copyright violations.  In the past few days this has started to trek its way through the courts, although the main case won't be heard until October this year.

Let me prefix my next statements with the standard line: I Am Not A Lawyer.

However, bearing that in mind, may I refer back to the earlier parts of this article? 

In particular, focus on the 'Theft' part of my previous comments.  Temper that with another tenet of Australian life, the amusingly anachronistic "innocent until proven guilty."

The core (as I see it) of the AFACT argument is that some users of the iiNet network have been identified by AFACT members as obtaining copyrighted materials in a non authorised manner and thus iiNet is obligated to terminate their connection, which iiNet is not doing.

In exactly the same way that a bookseller is obligated to tell publishers of all the people they detect taking books without paying.

There is endless legal precedent (remember, IANAL) to suggest that providers of carriage are not responsible for what they carry. 

Can you just imagine what would happen if Australia Post were responsible for the contents of every package they carry and should be legally forced to stop delivering to an address if some packages contained illegal items? 

Too easy a target?  How about these…

What if the local electricity company was legally responsible for disconnecting every indoor marijuana grower? 

Perhaps Qantas might be punished if they were to carry a fugitive on the run.

There has been extensive discussion in the media over the methods used elsewhere in the world to identify illegal downloaders.  One of the more amusing investigations demonstrated that it was trivially easy to cause a DCMA takedown notice to be issued to a device that could not possibly have downloaded anything (in this case, three printers and a wireless access point).

Quoting from the University of Washington research paper: "To protect their content, copyright holders police P2P networks by monitoring P2P objects and sharing behaviour, collecting evidence of infringement, and then issuing to an infringing user a so-called Digital Millennium Copyright Act (DMCA) takedown notice. These notices are formal requests to stop sharing particular data and are typically sent to the ISPs corresponding to the IP addresses of allegedly infringing users."

This is a "guilty until proven otherwise" mentality.  Nothing has been proven; in fact the research paper shows a number of ways the detection systems can get it wrong and more importantly how easy it is to redirect the takedown notice to an innocent third party.

Let me use that context to restate what will happen if AFACT wins their case against iiNet.  If, for any reason, someone decides that you have obtained their copyrighted material without their permission they will be entitled to insist that your ISP sever your connection.  Never mind that you've never even heard of the copyrighted material, nor the owner of it; if their systems decide you're guilty, then clearly you must be guilty.

This disease is spreading, read on for the latest infestation.

Prior to being voted out of office in November last year, the New Zealand Labour Government passed legislation similar to the DCMA.

An extension to the existing Copyright Act, Section 92A will come into force on February 28th and will require an ISP to terminate the connection of anyone against whom an allegation of infringement is made.

One of the recent reports describes some hellish potential outcomes.  For instance, EVERY business is considered to be an ISP for the purposes of this legislation if they provide Internet access to their staff.  Further, every ISP (clearly including almost all businesses) must have a "termination policy" to describe how they will track down and terminate the access of anyone deemed to be an infringer.

I'm sorry, but if I were a business person receiving a "take down" (or whatever Section 92A calls it), my response would be three-fold.  Firstly, "prove it."  Secondly, "I'm sorry, that person's internet access is essential to his role in the company."  Finally, "see you in court."

When confronted with the identified issues, the incoming Communications Minister Mr Stephen Joyce said "We will keep a close eye on how the new law works in practice. We are prepared to look at further changes if they prove necessary."  Minister Joyce, allow me to suggest you do this sooner rather than later.  Remember, this legislation comes from the same party that legislated to make ANY form of smacking a child by its parent a criminal offence.

As a conclusion, allow me to draw all these threads together.

1. Despite the exhortations of the content publishers, copyright infringement is not theft.

2. Despite the exhortations of the content publishers, just because they think you're a pirate, doesn't necessarily mean you are.

3. Despite the exhortations of the content publishers, the rule of law in this country is "innocent until proven guilty."  Not the other way around.

4. Finally, despite the exhortations of the content publishers, the real issue is protection of a business model, nothing else. 

How dare they!

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David Heath

David Heath has had a long and varied career in the IT industry having worked as a Pre-sales Network Engineer (remember Novell NetWare?), General Manager of IT&T for the TV Shopping Network, as a Technical manager in the Biometrics industry, and as a Technical Trainer and Instructional Designer in the industrial control sector. In all aspects, security has been a driving focus. Throughout his career, David has sought to inform and educate people and has done that through his writings and in more formal educational environments.