LawFont.com

Regular readers may recall that last week I blogged the fact that proposals to change Australian copyright law to allow some format shifting – touted as allowing people to use their iPods legally – did not, in fact, fit how iPods work. It was good of course to see that there was some response to this issue (whether my commentary, or someone else’s) by the government: in the second reading speech for the Copyright Amendment Bill, we have Attorney-General Philip Ruddock making the following comments:

I note there has been some commentary on the technical aspects of the exposure draft of the bill in relation to format shifting to iPods. That is why the drafts of this bill were made publicly available for comment. The government will listen to and consider comments and make any necessary technical changes to ensure the bill achieves the government’s objectives.

That’s good. I hope they’re talking to the Zune people too. Because the Zune works differently from the iPod. Zune is the Microsoft ‘answer’ to the iPod. Like Apple’s system, Zune will provide an ‘integrated music/device system’ – a player, a music store, and the ability to play mp3s ripped from personal CDs. But Zune comes with another twist. To quote a story from USA Today:

‘Zune owners can recommend song favorites by zapping them to each other’s unit wirelessly — but the shared songs come with heavy restrictions. The transferred song will be playable for up to three days or three plays. After that, the song expires….
The Zune three-plays rule even applies to songs that are not copy-protected songs — for instance, a recording of yourself playing the piano and singing.’ [by the way, mp3s ripped from CDs are also unprotected].

So think about that use in terms of the Exposure Draft. Assume that the song is ripped from a legitimately purchased CD owned by Sharer. Sharer wants to zap the really cool song to Recipient. Recipient is a friend, not a ‘household member’ or family member of Sharer.

1. the copy on the original owner’s Zune is the ‘main copy’. It is perhaps legitimate (let’s assume, for the moment, that Zune doesn’t require keeping songs on your PC (or, they fix that problem with the Exposure Draft).
2. But the copy on Recipient’s Zune – well, that’s a copy made from a ‘main copy’. That means it’s not excused under the Exposure Draft. oh dear. Even if you can’t make further copies from the file on the Zune. And despite the fact that it will expire, and so is a temporary copy. Temporary copies are infringements, you see, under our copyright law, maybe under our old law pre FTA, but certainly under the bright shiny post-FTA copyright law.
3. What is more, let’s hope that the ‘zapping’ isn’t a communication by wireless means to the public. Assume if we are talking close friends it isn’t a communication.

Is this a problem? Well, it depends what you are trying to do with the law. If you are trying to legitimize iPods in the current form, who cares what the Zune does? but if you are trying to more than that, yes, this is a problem.

According to the Attorney-General, the law will be amended in order to ensure that it will achieve its objectives. So let’s look at what the Explanatory Memorandum says the law is trying to do. According to that document, here is the reasoning behind the exception:

1. The “principal objective is to ensure that exceptions and statutory licensees in the Act continue to provide reasonable public access to copyright material”
   Well, that one just begs the question of what is ‘reasonable’. It doesn’t really help us decide whether a Zune-type feature should be allowed.
2. There is a need to recognise common forms of private copying that do not undermine the economic incentives provided by copyright.
   Does Zune-type copying undermine economic incentives? well, you would think not, right? Because if the sharing is ‘hey, this is a cool song’, the hope is that Recipient will go and buy the thing somewhere (CD, Zune store, or by going to concerts). There is also the question, though: is the aim to recognise common forms of private copying now, or common forms that might emerge or are about to emerge?
3. Many ordinary Australians do not believe that ‘format-shifting’ music they have purchased for personal use should be legally wrong with a risk of civil legal action, however unlikely. Fialure to recognise such common practices diminishes the respect for copyright and undermines the credibility of the Act.
   It is submitted, your Honour, (a) that most people would not think Zune-type sharing should be legally wrong, particularly since it is coming on a device from Microsoft, (b) that the law is less credible (i) when it fails to allow regular, legitimate technology to be used legitimately, and/or (ii) when the law is written to accommodate one kind of MP3 player, and not others.
4. The failure to recognise the reality of private copying is also unsatisfactory for industries investing in the delivery of digital devices and services.

That last one is the kicker, by the way. You see, no one is going to sue Microsoft about this sharing feature, illegitimate as it might be under any law passed by the Australian parliament. But what about other, smaller device or software providers? Who can’t offer other innovative features, because the law has been written to fit the older technology?

There is nothing in this bill for innovative companies. The law legitimates old technology, not new. And that says a lot about the priorities of this government.