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Piracy Law

Hard-working software resellers trying to make an honest buck are now facing a battle with software pirates that seems to be getting more heated every day; this is caused by mod chips and ripping, burning and peer-to-peer technologies that allow software pirates to sell illegal software at “street prices” at the venerable family-friendly weekend market. But if governments can’t stop swashbucklers from firing off rocket-powered grenades at luxury cruise ships in the Indian Ocean, what can they possibly do about software pirates?

New tighter laws for Australia

As a result of the Australia-United States Free Trade Agreement (AUSFTA) that came into force on 1 January 2005, people who now make illegal copies of software that is subsequently used in businesses or is copied with the intention of obtaining a commercial advantage or profit, could face criminal penalties, including jail sentences. The laws were designed to place Australia on an equal footing with the United States.

Although Australian copyright laws are still not identical to those in place in the United States, to get an idea of what might be in store for Australian criminals in the future, resellers are invited to feast their eyes on the following American precedents:

  • One well known standoff between governments and pirates is the appropriately labelled “Operation Buccaneer”, a continuing conglomerate of copyright investigations and prosecutions carried out by the Computer Crime & Intellectual Property Section at the United States Department of Justice. Operation Buccaneer aims to clamp down on illegally distributed software, movies, games, music and other copyrighted materials. According to the Unites States Department of Justice, 13 copyright pirates have already been sentenced to federal prison terms of up to 46 months!
  • In 2005, 3 Californians were indicted by a federal grand jury in relation to their involvement in a scheme to pirate over 325,000 copies of copyrighted CDs and software.
  • 8 people were charged in relation to a stolen copy of Star Wars: Episode III – Revenge of the Sith that subsequently ended up on the internet the day before the film opened worldwide.
  • Further harsh laws may be enacted in the United States after new laws were recently proposed by US Attorney General Alberto Gonzales.

What else has been happening on the Australian circuit

In the past month, the torrent of copyright-related cases has continued to pour out from the courts. Firstly, the BitTorrent case between internet service provider Swiftel and Music Industry Piracy Investigations was settled. In that case several of Swiftel’s employees and customers allegedly created a BitTorrent system that facilitated the illegal distribution of thousands of music and video files.

Then there was the Microsoft case, handed down on 28 October 2005 by the Federal Court of Australia where Microsoft Corporation pulled out its big guns and fired at Sydney-based PC Club Australia for pirating Microsoft software. Ultimately, PC Club had to pay a whopping $1.3 million to the software giant.

Most recently, however, Sony’s heads have been on the chopping block with news headlines focused on Sony’s new CDs that surreptitiously places XCP software onto computers. A class action has been launched in the United States by several consumers who claim that Sony’s new CDs have damaged their computers.

Conclusion

Copyright laws in Australia are in a state of flux. Unfortunately, the law is always one step behind the technology and this makes it difficult to enforce. Federal Police and Customs Officials can only do so much to guard our ports from the flood of black market software hitting our shores from the piracy havens. In addition, the sheer availability and unrelenting pace at which underground factions appear to infiltrate copy-protection mechanisms makes it difficult to put in place adequate anti-piracy software.

On the bright side, the new laws are strengthening Australia’s grip on digital piracy, and the hefty fines and prison sentences are sure to result in some sleepless nights for the pirates. It will be interesting to see how effective the new laws will be.

Disclaimer: This column is for general informational purposes only. It is not legal advice nor is it a substitute for legal advice. Readers should seek legal advice on their own particular circumstances. Alan Arnott is a technology & telecommunications lawyer with qualifications in computer science and law with Arnotts Lawyers Jones Bay Wharf in Sydney. For more information, please visit http://www.arnotts.net.au.