LawFont.com

No, I’m not learning Finnish. That is the first line of this highly recommended article on Crikey.com.au – Therese Catanzariti, Australian expat in Finland, on Finnish music with a rather nice segue into Kazaa and private copying issues.

In other IP news and reading this morning:

• Warwick Rothnie on the ever-ongoing (or rather, never-going) iTunes Australia saga. Oh, and Warwick – government comments on where the fair use inquiry was at as at the end of August can be found here.
• The Economist on the digital home and the fundamental importance of open standards and interoperability in getting consumers to shift to new devices.

What else am I reading? Well, there’s an article in the AIPJ that I think is well worth a read: it’s called “If You Go Down to the Woods Today: Tales from the Front Line of Criminal Copyright Enforcement”, and it’s a contribution from a barrister. A couple of very interesting points in this paper.

The first relates to the jurisdiction of the Local Court. The author points out that:

1. criminal copyright matters can be determined in the Local Court, as a summary matter, even though the maximum penalty is up to 5 years imprisonment – when Local Court and summary matters are usually limited to 2 years;
2. notably, this means that we have little access to these judgments – Local Court cases are not recorded in AustLII
3. Local Court magistrates do not have expertise in copyright law, and it is difficult to explain the technical aspects to them

The second relates to costs: the prosecution claims cost, and this can be used to encourage an innocent person to plead guilty – the article cites a case where a law firm wrote to an accused, stating that if the accused pleaded not guilty, the law firm would incur significant cost and the accused might be liable. That letter gave examples of recent cases where the accused pleaded not guilty and was found both guilty, and liable for costs of $40,000 – $60,000: this in circumstances where the likely fine for the offence would be around $1,000 – $5,000. The use of costs to effectively increase the maximum penalty for a copyright infringement is deeply troubling. Criminal prosecution for copyright infringement is undoubtedly appropriate in some circumstances. But we do need to be very conscious of the difference between civil and criminal matters and the idea of the penalty set by Parliament as being the standard.

Other matters talked about in the article include:

1. the inconsistency of confining charges to a limited number of copyright infringements but sentencing taking other alleged infringements into account;
2. the proving of ‘knowledge’ in circumstances where the level of knowledge may be doubtful, and relying on names and signs on CDs which are not generally known to the public as indicating ‘genuine’ or ‘pirated’ CDs
3. the issue of venue – and the problem of cases not being brought where the accused is based.

I’ll quote a short excerpt from the introduction:

‘Copyright piracy is a serious problem and penalties should be severe. … Criminal sanctions such as the stigma of a criminal record and a jail term may be the only effective deterrent against pirate operations that treat civil damages as just another cost of doing business. … However, this article questions whether Australian criminal copyright sanctions are inadvertently stronger than they are intended to be because of the fact that matters are handled in the Local Court, the way that the laws work in practice, and the way that the laws are applied by the prosecution and by copyright owners.

This article argues that the criminal copyright laws should be amended to ensure that the laws operate fairly and do not improperly undermine the rights of the accused to defend himself or herself.

This article does not include extensive empirical analysis, and does not pretend to be comprehensive or definitive. However, it is not theoretical, and is not an analysis of ‘what would happen if’ worst case scenarios. These are real examples in real cases.’

Read the whole thing. It brings to light some of the stuff that usually remains hidden (at least from academic eyes!) about copyright enforcement. The reference is (2005) 16 AIPJ 165 (August edition of the Australian Intellectual Property Journal) (sorry, no link).