I'm not a Bad Guy any more!

First published here.


Oh joy! Oh happy day! I'm not going to be a bad guy anymore.

Right now, I'm a hardened, cold-blooded criminal. I routinely commit acts that make me eligable for the same amount of jail time as somone who tortures small puppies. What goes on in this devious mind of mine? What makes me tick? What drives me to commit these heinous crimes?

I own a VCR with a functioning Record button.

In Australia, we don't have "fair use" laws. Anyone in the the fair old land of Oz who's ever popped in a tape to record The Simpsons or ripped a CD or downloaded just about anything from the p2p networks is a pirate.

See, our current copyright laws date back to 1968. To be fair, there's been a little tinkering with them over the past few years, but at no time has our government thought Australians should have the right to copy stuff for our own private use. We landed some great "fair dealing" exceptions (in 1980) which, for example, make it legal to perform a copyrighted work at home, but they but contain nothing that actually allows you to copy it in the first place, (e.g., you can invite a few mates over to watch a rented video, but not one that you've taped off the TV yourself).

Even the Issues Paper put out by the federal government in May last year acknowledges, "some consumers may believe that they can make a copy of an item that they have purchased containing copyright material, provided they do not sell the copy. On the other hand, some copyright notices placed on copyright material appear to claim that any copying is unlawful. Neither position is accurate."

In the words of one of the Australian Copyright Council's publications (imaginitively entitled "Information Sheet G79"):

"In a recent case, the Federal Court stated that whether a dealing is fair or not is to be judged by the criterion of a fair minded and honest person".

Courts will look both at whether an objective viewer would consider that:

• the person is genuinely using the material for one of the purposes set out in the Act; and
• their use of it is fair in that context.
  

Factors that may be taken into account in working out whether a use is "fair" include whether the person using the material is doing so for commercial purposes, and whether the copyright owner is out of pocket from the use (for example, where a person copies the whole of a work that is available for sale). However, the mere fact that the person using the material is not making a profit does not make it fair."

You'll note a fundamental flaw in the logic of the last paragraph, but it's coming from a copyright holder's back-patting club, so you should be used to reading that kind of trash by now.

Luckily, our fearless attorney-general Philip Ruddock is now looking to make some serious changes to Australian copyright laws. "We should have copyright laws that are more targeted at the real problem," he said late last month as thousands of Aussies were busily becoming criminals thanks to the new iPods they'd received for Christmas. "We should not treat everyday Australians who want to use technology to enjoy copyright material they have obtained legally as infringers where this does not cause harm to our copyright industries."

Wow! That's so cool it almost makes you forget about the national ID card he's trying to foist on us, doesn't it?

Under the Australian system, "fair dealing" is very different from "fair use". Fair dealing means you're allowed to copy stuff only if the copying falls under one or more of the specific exceptions set out in the Copyright Act. Australians are only allowed to copy certain things in the specific ways that the government says are okay. This is a pretty bad system because it relies on the government actively working out what's okay to copy and thinking about that kind of thing on a regular basis. We all know that goverment is a slow-moving beast at the best of times, and sloth-like it it's normal state, which is how most Australians came to be copyright infringers in the first place.

In essence, the current system means copyright holders get a better legal position through government inaction in the same way that a loan shark won't hassle you for a while, but will one day kick down your door to demand payment right now. Australian copyright holders could simply wait until something becomes popular (like p2p), then throw a RIAA-style dummy spit and start litigating.

What's on the table now is a chance to get the whole system reversed - the government states generally what you're allowed to do and then leaves it up to the courts to decide if anything in the future should go on the list of no-nos.

I'm kind of aprehensive about this whole change. At this point, no one in Australia is being sued for downloading like they are in the U.S., so we could just leave everything the way it is and not have any immediate problems.

The downside to is that one day, someone in some kind of anti-terrorism squad will work out that a great way to get search warrants is to claim there's "probable cause" for someone to be a copyright criminal (like if they've bought a DVD burner on their credit card) and use it as a pretext to start kicking down doors all over the country.

Stranger things have happened and we have been lulled into a false sense of insecurity...

If we do get "fair use" laws though, there's also the danger that the Australian laws will someday be "harmonized" with US law, meaning the good people of Oz may be restricted from doing quite common things under something resembling the DMCA, which everyone else in the world currently uses to ridicule Americans for not keeping a hand on their governmental tiller.

(Note to anyone not familiar with the "harmonizing" of laws - In theory, this is when two countries agree to work under the same law for the purposes of making it easier to trade with each other. In practice, it means that the U.S. has worked out how to export their laws as well as their products, to other countries. Being in legal harmony with America basically means they get to decide what you're allowed to do until you elect a government with enough balls to tell them "thanks, but no thanks").

Copyright owners have an incentive to meet user expectations. That's not me speaking, that's the federal government's position via Attorney-General Ruddock, and while I'm tempted to say something sarcastic about that statement (like "No shit, Sherlock") I think I'll have to wait until I see how badly they bollocks it up before commenting further. Looking at the Australian government's past performance in this area, I might have to wait a while for that chance.

With that all said, I think I'll go revel in my criminal genius by watching something I taped off the TV last week.