Web Piracy and the Law – Are there Changes Ahead?

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Australians are among the biggest illegal downloaders in the world with almost 3 million viewers visiting the top two illegal downloading internet sites in May this year.

In spite of large public awareness campaigns, illegally downloading movies and television shows is becoming increasingly common among members of the public, and currently there is little that is done to prevent web pirates from downloading content.

But the downloading free-for-all could be set to change in the future with calls for a specific court dedicated to pursuing web pirates and penalising people who download movies and television shows illegally.

It is also reported that Communications Minister Malcolm Turnbull and Attorney General George Brandis are discussing making changes to the law that would lead to stricter penalties and consequences for people who are found to be involved in illegal downloading.

What does the law say about downloading?

Under copyright laws, it is illegal to copy, download, distribute and sell films or television programs unless you own the rights to them.

Downloading movies or TV shows is against the law, and although nobody has been prosecuted for downloading movies in Australia, a recent case in the UK highlights the potential for enforcement of copyright laws.

In that case, a 25-year-old computer programmer was sentenced to 33 months’ imprisonment for pirating and distributing a movie over Facebook.

In a recent case of piracy in Australia, a father and son were convicted of a range of Commonwealth criminal offences after they illegally sold Foxtel services to thousands of people.

Michael Scherle was sentenced to six months in prison followed by home detention and community service. His son Daniel Albert Clark was given a good behaviour bond.

Another man, Haidar Majid Salam Al Baghdadi, is currently facing charges for operating a card-sharing network that allowed people to illegally access Foxtel services.

Although it is illegal to pirate and download movies, due to the widespread nature of pirating and the costs involved in pursuing charges, very few piracy cases make it to the courts.

This has led to a number of suggestions being made for changes, from setting up a specific court to deal with web-based piracy, to putting the onus on ISPs to remove access to those who are found to be downloading illegal movies and television shows.

What changes have been suggested?

According to Minister Turnbull, there are a number of potential avenues as to how the law could be changed to crack down on web pirates in Australia.

These include a “three strikes” policy, which would be similar to current New Zealand legislation.

Under the three strikes policy, users would be sent a notification from their ISP if illegal downloading activity was detected.

After three warnings they could face legal action to recover the damages.

Australian anti-piracy inspector Michael Speck has suggested that a separate, specific court set up to deal with piracy issues would help those who believed they were victims of copyright infringement to pursue further action.

Having a small claims-style tribunal in place would mean that people could pursue copyright infringements in court without having to pay high legal fees.

Another suggestion, which has been widely talked about, involves forcing internet service providers to block known file-sharing websites and to stop access for subscribers who illicitly download illegal content.

The proposed changes have met with a mixed response from internet service providers and consumer organisations.

A number of ISPs including iiNet have stated that piracy is a pricing and availability issue and they should not be liable for consumers who download illegal movies.

Consumer advocacy organisation Choice takes a similar stance, blaming the popularity of illegal downloading on the lack of availability of movies and television shows in Australia and the high prices to purchase them compared to other countries.

There have also been suggestions that downloading something for personal use doesn’t fall into the legal definition of ‘theft’, which involves depriving someone permanently of something they own.

Although downloading for personal use does involve taking something without payment, if it doesn’t deprive others of the film or television show, it technically doesn’t fall into the category of theft and it can therefore be argued that it should not be treated as a criminal offence.

Penalising individuals for web piracy and downloading would serve to clog up the courts for very little benefit.

The issue of web piracy is unlikely to be resolved immediately, but with the government apparently committed to making changes and finding ways to reduce the number of illegal downloads, chances are there will be changes in the future.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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