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Someone at Telstra forgot to get their NextG advertisement checked by a copyright lawyer.

You may have seen the ad (it showed last night during Australian Idol, but I’ve seen it before): a good-looking girl having a great time at a live concert holds up her fabulous sexy slimline phone and records what’s going on. She sends it to her home computer, and a whole bunch of the concertgoers follow her home to continue the party at her place. Pan to fabulous large house with seriously rocking party.

What the Telstra people clearly didn’t check is that the Copyright Amendment Bill will make a whole bunch of these activities criminal, with strict liability and a $6,600 fine per offence. Let’s see:

1. Making the recording using her phone: that would be (1) making a direct recording of a performance without the permission of the performer(s): criminal offence (s248PA) $6,600 fine; and (2) possessing equipment to make or copy unauthorised recording: criminal offence (s248PB), $6,600 fine;
2. Sending the recording to her computer: this would be making a copy of an unauthorised recording: criminal offence (s248PF), $6,600 fine;
3. Playing the recording at the party: this would be playing unauthorised recording publicly during 20 year protection period: criminal offence (s248PD), $6,600 fine. I think it is probably publicly because the crowd who follow her home are not a bunch of friends but people she met and knows only in a ‘public’ sense.
4. Total criminal offences: 4, total fines incurred: maximum of $26,400.

Someone call the police!

Update: I’m asked by Andrew Leigh whether any of these acts are offences under current law or just proposed laws (ie, those which are being considered by a Senate Committee tomorrow). In summary:

1. the key here is the mens rea, or intent. What the Copyright Amendment Bill does is remove the requirement of knowledge/intention for a vast array (in fact, majority) of the copyright offences under the copyright act. I am assuming, in the above, that the attractive young woman in question is not a copyright lawyer and therefore does not realise what she is doing is an infringement of copyright. Under our shiny new copyright laws, strict liability offences are created, and her lack of knowledge that anything she is doing is wrong will not save her;
2. Under current law, each of the offences outlined above exist. But in each case (given Criminal Code requirements) our attractive young woman would have to be at least reckless as to the fact the fact that the recording was made without the authority of the performer. This grants our young woman some protection from being considered a criminal provided there are not big signs everywhere saying no recordings are to be made (I can’t see whether there are in the advertisement);
3. Oh, and by the way, under the Bill there will be an infringement notice system, so (subject to us seeing more details of this system) it is conceivable that if our attractive young woman is unfortunate enough to meet an over-enthusiastic police officer who she cannot bat her eyelashes at, she could get an infringement notice. On the spot fine – $1320. Ouch.

Second update: apparently (see the comments) the action shown is the girl downloading a song from Bigpond to play at home. That actually probably doesn’t make the playing at the party legit because it’s still causing a sound recording to be heard in public without authorisation (I bet there’s no term in the BigPond license allowing playing at a public party event). But it DOES mean that the download is legitimate.

Sorry for misinterpretation. BUT can I just note that if the girl HAD been doing what I described, she WOULD be being a criminal. So maybe Telstra isn’t inciting criminal behaviour. But the kind of behaviour I’ve described IS criminal under the new laws, and DOES have the consequences I’ve just described. Which is STILL stoopid.