Serious issues

Author’s note: this post has been updated since publication.

It’s surprising how much controversy has been generated by the Online Copyright Infringement Report published recently by Australia’s Department of Communications.  It’s a modest document.  It reports the results of 2,630 interviews conducted  in March and April 2015 with Australian internet users aged 12 years and over. It provides some analysis of the interview results.  It’s an interesting but not particularly startling read; a useful addition to the literature, one might have thought.

Apparently not. The reaction from Australian copyright commentators on Twitter has been swift and brutal.  “Loving watching Twitter take apart @CommsAu’s witless piracy drivel #derpicide” tweeted Crikey correspondent Bernard Keane to his 46,000 followers.

Much of the critical response to the Report has adopted a critique written by Campbell Simpson in the Australian edition of the online tech journal Gizmodo.  Simpson’s piece is titled “The Australian Government’s Copyright Infringement Report has some problems with the word ‘Illegal’”.  Links to the article have been tweeted with apparent approval of its content by a number of commentators, including Keane and Queensland University of Technology academic Matthew Rimmer.  Both are prominent critics of recent attempts by rights holders and the Australian Government to control online copyright infringement.

Simpson’s key point is that the Report describes unauthorised downloading as illegal.  “The report has serious issues, though,” he says “including the rampant use of the word “illegal”.  He continues:

“The use of the word “illegal” even to refer to material downloaded that (allegedly) infringes on the copyright of a rights-holder is misplaced.  It’s not clearly and blatantly illegal in the strictest use of the word; it is a civil issue rather than a criminal one and one that you may be sued  rather than prosecuted for, by a private party rather than a police or government body.  This is an ongoing issue with government and media reporting on the topic of copyright infringement.”

This reference to “government and media reporting” echoes a line of argument that has been made before by those critical of attempts by rights holders to contain online infringement.  Another technology commentator, Stilgherrian, recently tweeted:

“”Illegal” and “theft etc” are all legally incorrect propaganda used by the rights holders”.

According to Simpson, this mis-use (as he sees it) of the word “illegal” is “the big issue” with the Report.  There is a fundamental problem with his view.

Copyright infringement occurs when the infringer does something in relation to a copyright work, such as downloading a movie, without the licence (i.e. the consent or authority) of the copyright owner.  In other words, the infringer’s act is “unauthorised”.

The Macquarie Dictionary is recognised by Australian courts as a source of evidence for the plain Australian English meaning of words.  How does it define the word “illegal”?

“adjective 1. not legal; unauthorised”.

I happen to agree with Simpson that it is not strictly correct to call a civil wrong “illegal” and he’s correct when he says that the Copyright Act doesn’t use the word.  However, if a recognised authority for evidence of the plain meaning of words in Australia says that “unauthorised” and “illegal” are synonyms, it’s a bit rich to construct a whole article around the fact that the authors of the Report have taken the same view and to suggest that this somehow means that there are “serious issues” with their methodology and conclusions.  Even if the Macquarie definition was different, he is making a semantic point at best that has little to do with the quality of the Report.

Simpson continues immediately after the extract above:

“Similarly the copyright infringement report calls uTorrent and BitTorrent “illegal peer-to-peer methods” – that is, methods that illegal downloaders use to access copyright infringing content.”

From this, Simpson makes the point that peer to peer technology is agnostic as to the intention of its users and that calling peer to peer applications illegal makes as little sense as calling the internet illegal or, as he puts it “calling a car company “illegal” because their car was used by a completely unassociated individual for a ram-raid on a shop or an ATM”.

The phrase “illegal peer-to-peer methods” does not appear anywhere in the Report itself, although it does appear in a diagram in separately published “Summary of Research Findings“.  I can find no basis in the Report itself for any suggestion that the Report’s authors regard peer to peer applications in themselves as “illegal”.  The closest to that sort of statement that appears in the Report itself is the comment on page 44 that “Non-infringers were a lot more likely to be using legal services such as ABC iView, SBS On Demand, TENPlay and Plus rather than peer-to-peer methods.”  However, this statement falls far short of alleging that peer-to-peer methods themselves are inherently illegal.

The use of the word “illegal” in the diagram in the Summary is sloppy work by the authors, and they deserved to be called out on this by Simpson and to be criticised for it (especially given that this work has been done for a Government department, as Simpson and others have pointed out, and that it can be expected that many people will look at the Summary rather than the full report).  However, in my view Simpson again is making a semantic “gotcha” point about the Report based on wording in an ancillary document and in doing that he does not, in my opinion, fairly address the information and conclusions in the Report.

In my view, analysis of this type does nothing to advance discussion of issues that are important for the many people and organisations who create and make use of copyright material in Australia.  Unfortunately, it’s all too prevalent on both sides of the debate.

Incidentally, an accurate and far more nuanced evaluation of the Report, written by Josh Taylor, is available on the Crikey site (it’s paywalled at present).  Dr Rimmer has also stated on Twitter today that he considers that the Report has methodological and terminological flaws and would have benefited from peer review prior to publication.

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About noonanite

Paul Noonan is a lawyer and musician based in Melbourne, Australia.
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