RE: "Against Intellectual Property"

From: Tim Arnold-Moore <tja[_at_]mds.rmit.edu.au>
Date: Thu, 31 Aug 2000 15:20:23 +1000

Doug Isenberg wrote:
> With all of the recent attention being given to Napster's legal case in
> the United States, it's easy to forget that the service is available
> worldwide. Therefore, regardless of the outcome of the U.S. case, Napster
> -- and other MP3 services -- could be subject to the laws of other
> countries, too. A new article explains how Australian copyright laws might
> apply to MP3 file-swapping services. See
> http://www.gigalaw.com/articles/cameron-2000-08-p1.html

Doug is quite right that even if Napster wins in the US (I think they should by I'm no US federal judge), they may have problems elsewhere.

I would be reluctant to rely on this particular article to show that however. It doesn't come close to covering all of the relevant issues. I don't think it was intended to be a scholarly article given its length and the level of research shown.

First of all, Australia has no equivalent to the DMCA (although this will change soon, see below), a point which was not really made in the article.

Secondly, our rule on authorizing infringement (contributory infringement) is quite different to that in Sony. A useful summary of the authorities appears in http://www.austlii.edu.au/au/cases/cth/federal%5fct/unrep4615.html The leading case in this area _University of New South Wales v. Moorhouse_ (1975) 133 CLR 1_ (in a case concerning provision by universities of photocopiers in libraries) makes it clear that a substantial non-infringing use is insufficient to protect Napster:

	"It is true that the machines were not used exclusively for the
      purpose of copying books; they were extensively used to copy
      lecture notes and other private documents.  Moreover, not
      all of the books which might be copied were subject to
      copyright.  However, in the nature of things it was likely
      that some of the books which were subject to copyright and
      which were in the open shelves might be copied by use of the
      machines in a manner that would constitute an infringement
      of copyright unless some means were adopted to prevent that
      from being done.  It could not be assumed that persons
      making copies of works in which copyright existed would do
      so only in circumstances which amounted to a fair dealing
      for the purpose of research or private study, at least in
      the absence of any effective measures to ensure that any
      other copying of copyright works was forbidden."

No references were made to any of these (binding) authorities.

Thirdly, the vague reference to the Telstra decision, is I presume, Telstra v. APRA
http://www.austlii.edu.au/au/cases/cth/high%5fct/unrep338.html (there have been about a dozen cases before the federal courts in the last 10 years with Telstra as one of the parties but this is the major one dealing with copyright) is largely irrelevant.
It is primarily concerned with the diffusion right (continuous retransmission of radio broadcasts in particular). It does not discuss the reproduction right, and although "authorizing" (the equivalent of contributory infringement) appears (with the incorrect spelling "authorising") 5 times in the judgment, the relevant provision (s. 13(2)) is not mentioned and there is no discussion of the distinction between diffusing and authorizing diffusion. It could hardly be considered a decisive precedent on the Napster issue, specifically given the abundance of more relevant and binding precedents directly on authorization and reproduction.

Fourthly, the discussion of proposed amendments is out of date. The original proposed section 39B was correctly quoted in the article as:   '39B Communication by use of facilities provided by carriers or carriage service providers
  A carrier or carriage service provider is not taken to have authorised any infringement
  of copyright in a work merely because the carrier or carriage service provider provides
  facilities used by a person to do something the right to do which is included in the
  copyright.'
But the wording was amended (by the government) in the House. The new wording is considerably broader:
  '39B Communication by use of certain facilities   A person (including a carrier or carriage service provider) who provides   facilities for making, or facilitating the making of, a communication   is not taken to have authorised any infringement of copyright in a work   merely because another person uses the facilities so provided to do   something the right to do which is included in the copyright.' Both versions also insert provisions preventing circumvention similar to those in the DMCA.
The version of the bill passed by the senate and agreed to by the house (7 Aug 2000) can be found at:
http://search.aph.gov.au/search/ParlInfo.ASP?action=browse&Path=Legislation/Curr ent+Bills+by+Title/Copyright+Amendment+(Digital+Agenda)+Bill+1999&Start=3&pIA#to p
This bill commences either in 6 months time or earlier by proclamation (see s. 2).

NOTE: My email software wraps large URLs (just remove the white space between them and it should work).

Bottom line: Napster would probably be in trouble if litigated today in Australia, but after the commencement of this new legislation, Napster will be considerably safer in Australia. Received on Thu Aug 31 2000 - 06:55:53 GMT