[LINK] The US and THEM of P2P

Fri Mar 6 01:17:23 AEDT 2009

My comments are here:
http://brendanscott.wordpress.com/2009/03/05/copyright-pirates-in-sa-police-force/

In short: I think the circumstances have the potential to give rise to at least one offence. 
NB: IANACL

In respect of s110AA - the report does say that the copying is illegal.  The odd thing about 110AA is that it uses the term "videotape" - which is not defined in the Act and, as far as I can tell, only appears in s 110AA.  You'd need to check the EM to see whether anything was intended, but it is not clear that copying of DVDs would be covered.  

>From the EM (it is ambiguous):

6.44 New sub-s 110AA(1) lists a number of conditions necessary for the new
exception to operate. First, the main copy must be made in electronic form from
videotape embodying a cinematograph film in analog form and made by the owner of
the videotape for his or her private and domestic use instead of the videotape
(paragraph 110AA(1)(a)). This will permit a person, eg, to copy or ‘dub’ a film from a
videotape to a DVD but not to copy a videotape to another videotape nor to copy a
DVD to another DVD. The phrase ‘instead of’ indicates that the owner may view a
film using the original videotape and by means of a main copy in electronic form; that
is, the owner is not required to store the original videotape.

Tom Koltai wrote:
> Actually, You are correct copying a dvd or cd for personal use is
> permitted according to 10AA (below).
> 
> However, being pedantic - that is not what the police department did.
> 
> From: Copyright Law Branch [mailto:copyrightlawbranch at ag.gov.au] 
> Sent: Tuesday, 30 September 2008 11:46 AM
> To: 'tomk at unwired.com.au'
> Subject: FW: Draft Copyright Infringement Notice Scheme Guidelines
> [SEC=UNCLASSIFIED]
> 
> Dear Mr Koltai,  
> 
> Thank you for your e-mail dated 27 September (attached below) regarding
> the Copyright Infringement Notice Scheme.   
> 
> As you have noted, the Copyright Act 1968 was amended by in 2006 by the
> Copyright Amendment Act 2006.  A current version of the Copyright Act
> incorporating in the 2006 amendments is available at the following
> website:  
> http://www.comlaw.gov.au/comlaw/Legislation/ActCompilation1.nsf/0/20470F
> 1CF0D331BDCA25750F000D54FC/$file/Copyright1968.pdf
> The 2006 amendments created a tiered system of indictable, summary and
> strict liability offences.  Under this system, offences applying to the
> same physical activity differ in seriousness dependant upon the criminal
> intent of the offender.  The lowest tier of the offence system is the
> strict liability offences, which require no criminal intent to be
> established.  Under the Act, these offences may be enforced by the
> infringement notice scheme.  As noted on our website, under this scheme,
> a person issued with an infringement notice will have the option of
> paying a fine as an alternative to prosecution in court for the alleged
> offence.  In some circumstances the scheme also requires the forfeiture
> of copyright infringing materials and/or related devices.   
> <snip>
> 
> The folowing exerpt from the Act re Video only - the music bit is
> similar.
> 
> 110AA Copying cinematograph film in different format for private
> use
> (1) This section applies if:
> (a) the owner of videotape embodying a cinematograph film in
> analog form makes a copy (the main copy) of the film in
> electronic form for his or her private and domestic use
> instead of the videotape; and
> (b) the videotape itself is not an infringing copy of the film or of
> a broadcast, sound recording, work or published edition of a
> work; and
> (c) at the time the owner makes the main copy, he or she has not
> made, and is not making, another copy that embodies the film
> in an electronic form substantially identical to the electronic
> form in which the film is embodied in the main copy.
> For this purpose, disregard a temporary copy of the film
> incidentally made as a necessary part of the technical process of
> making the main copy.
> (2) The making of the main copy is not an infringement of copyright in
> the cinematograph film or in a work or other subject-matter
> included in the film.
> Dealing with main copy may make it an infringing copy
> (3) Subsection (2) is taken never to have applied if the main copy is:
> (a) sold; or
> (b) let for hire; or
> (c) by way of trade offered or exposed for sale or hire; or
> (d) distributed for the purpose of trade or otherwise.
> Note: If the main copy is dealt with as described in subsection (3),
> then
> copyright may be infringed not only by the making of the main copy
> but also by the dealing with the main copy.
> (4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the
> main copy by the lender to a member of the lender's family or
> household for the member's private and domestic use.
> Disposal of videotape may make the main copy an infringing copy
> (5) Subsection (2) is taken never to have applied if the owner of the
> videotape disposes of it to another person.
> 
> Basically it is saying that the temporary copy (i.e.: the copy on the
> police computers) is illegal if not deleted after the personal copy for
> family members only residing at the same residence, is made.
> 
> Quite clearly - according to 10AA Subsection (5) it is illegal to share
> a copy of a DVD with anyone outside your family as defined in 10AA
> Subsection (3)(d) by the use of the word "otherwise".
> 
> In civil law there is a recognised principal of "clean hands" - possibly
> the S.A. police action should result in Australians having the right to
> claim "anshun estoppel" under criminal law if charged with a similar
> offense.
> 
> 
> Tom
> 
> -----Original Message-----
> From: Scott Howard [mailto:scott at doc.net.au] 
> Sent: Thursday, 5 March 2009 5:06 PM
> To: Tom Koltai
> Cc: link at anu.edu.au
> Subject: Re: [LINK] The US and THEM of P2P
> 
> 
> On Wed, Mar 4, 2009 at 4:04 PM, Tom Koltai <tomk at unwired.com.au> wrote:
> 
> Your argument is akin to stating - let him off judge, he's not a serial
> killer, he only shot one innocent person.
> 
> Shooting one person is a crime.  Shooting multiple people is a crime.
> 
> Copying a DVD for personal, non-commercial use is not a crime. Copying
> DVDs for commercial gain is a crime.
> 
> So no, my argument is nothing like that.
> 
>   Scott.
> 
> 
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