You Could Probably Download a Handbag: An Australian Piracy Primer

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From time to time I've written about copyright law in Australia both for Any Any and for previous pieces and the same questions tend to come up about how it's not illegal to pirate content in Australia.  Australian copyright law differs a bit from the copyright law of overseas jurisdictions and differs entirely from most journalistic description of piracy and when I write closer to the reality in Australian legislation it can create side conversations on places like Reddit and in social media about what the truth is. Today, I'd like to explore where we're up to at the moment in Australian law, particularly with the attorney general spoiling for a fight in the area.

What does "illegal" mean?

Good question because it's not as clear cut as you'd think. A lot of people consider that the word "illegal" means that there is law that describes something as being undesirable or bad, or things that you could be sued over. This definition has to be eschewed, because if we accept it a simply gobsmacking amount of things are illegal. Call in sick to work when you weren't that sick? Contrary to the legally binding employment contract you entered into that sets out a place you are to be and duties you are to conduct unless you are actually sick, so that's illegal. Divorced? There's a schroedinger's legality here where it's simultaneously contrary to the Marriage Act legal definition of marriage (which says it's for life) and legally permitted by the courts granting divorces (limiting the term of a marriage).  Peeked at someone else's practice test in class? That's a violation of conditions of enrollment at the school which invariably set out that you don't do that as part of the commercial service you are offered and accept (particularly in the case of private schools). We simply can't call everything contrary to a rule "illegal", even if there is some law that supports the rule. This is why in ordinary speech we use "illegal" to mean conduct which you can either be punished on the spot for by the police (such as a speeding fine), arrested and bought before a court (such as fraud or assault), or that a court, tribunal or other body would fine or sanction you for (such as being fined by the ACMA for sending spam or being fined by the CTTT in New South Wales for not complying with an order).

Everything else we need to call not illegal. We can call something the wrong thing to do, we can even concede that a court may be in some way involved in correcting something by forcing a person to give money or other consideration to somebody to correct a perceived harm.  We can't call it illegal though, and downloading movies, music and TV isn't illegal.

But The Copyright Act....

No, it doesn't. It doesn't matter what you're about to say, I've probably heard it before and it's probably not true.

The Copyright Act describes what copyright infringement is, and also sets out a range of things that are criminal offences (or "illegal"), none of those things include downloading a movie via a bittorent service and watching it.   Things it does  set out as being illegal include;

  • Selling or hiring a pirated copy of something (S132AE & S132AF: Sell Or Hiring Out Infringing Copy and Offering an Infringing Copy for Sale or Hire)
  • Making an infringing copy commercially (S132AD)
  • Commercial-scale infringement prejudicing copyright owner (S132AC)
  • Exhibiting an infringing copy commercially (like showing it at a cinema, (S132AG) 
  • Importing infringing copies (S132AH), so no shopping bags full of DVDs from Bali
  • Distributing an infringing copy in a trade or commercially (S132AI) 
  • Making or possessing a device that makes infringing copies - I think where this has ever been used it's  been with regard to DVD burner farms (S132AL)
  • Advertising an infringing copy (S132AN)  and
  • Circumventing a technological protection measure or dealing with devices that do so, or removing DRM info (S132APC, APD, APE and AQ)

A few other variations on the theme exist, but you'll notice that while downloading a movie or music would be necessary for any of these things to be the case, it's not enough by itself.  Broadly, you need to be commercially trading or trafficking pirated material or dealing in circumventing the measures that try and prevent piracy.  There is no "A person commits an offence if they download a movie and watch it."

Legislation around the world does set out an offence.  The US notably has several pieces of law that detail that someone who downloads a movie is doing something illegal.  We do not.  US copyright law does not apply to Australians in Australia any more than Saudi Arabian law bans people in Elizabeth, South Australia, from drinking. It doesn't matter that the content is American, the content owner is American or the site that is hosting the infringing work or the bittorent file index is American.  With only a handful of exceptions (such as child sex tourism, some tax areas and offences subject to special agreement), Australian law governs Australians in Australia.

But It's Theft

No it isn't.  Theft isn't just taking something off someone, it's stopping them from having it.  This is why there have been cases of people charged with theft for putting their bike lock on someone else's bike.  When you pirate something you make a copy of it against the wishes of the copyright owner, but they are still capable of making copies and selling them themselves, so it's not theft.

But It's... 

No. Stop that. 

I Don't Believe You, Can You Link to Where it Says It's Legal? 

No because that's not the way the law works. The law describes behaviours you can't do, it doesn't offer suggestions for behaviours you can.  Walking down the street eating an apple isn't legal because a law describes this behaviour as tolerable by society, it's legal because there is no law prohibiting it.  There are laws against dropping the apple core when you're done (state legislation preventing littering as well as possible local government act that creates littering by-laws), crossing on the red (traffic regulations the police govern) and then carjacking somebody (state criminal laws again). That makes those things illegal.  It's a matter of rules versus exceptions, legal is the rule, illegal is the exception.

So Let's All Fire Up Vuze?

Because it's not illegal doesn't mean it's without sanction.  A copyright holder could sue you for your activity (same as your employer could sue you for a sickie) but because we don't have the same framework of punitive damages like the US has, it wouldn't be like the multimillion dollar lawsuits we see in the US.  You could be required to pay for the content you've infringed the copyright in, and you could be required to pay some or even most of the legal costs of suing you.  This hasn't happened in Australia yet, because record labels and movie studios are aware that suing their customers isn't astonishingly good PR and proving the cases is actually harder than you'd think.  Rolling up to court with a big list of IP addresses can result and has resulted in accidental suing of dead people, technology illiterate grandmothers and university laser printers.

At the end of the day the other reason it's probably poorly advised to rip off content is because it's the wrong thing to do.  Not being illegal and having complicated and unlikely civil suit scenarios doesn't mean it's a good course of action to take.  It's certainly not the case as much as The Australian Screen Association says (I know right) but people work in this industry and produce these things on the assumption it'll be profitable and to one extent or another receiving it without paying for it may impact on that.  Further, the more you pirate the more industry associations and cartels put together by Big Media whine and lobby the government to introduce stupid laws or make changing our laws part of trade agreements.

Paying for good entertainment is one  of the best ways to make sure that the entertainment industry stops its whinging, and we all want that.  Even more than we want free movies.

Image: Christopher Clay