criminal law: August 2007 Archives
Justice Spender of the Federal Court of Australia has today given his judgment in Haneef v Minister for Immigration and Citizenship [2007] FCA 1273. In short, Spender J held that although the Minister applied the "association" test from Minister for Immigration & Multicultural Affairs v Chan [2001] FCA 1552, (which held that even an innocent association was sufficient to satisfy the legislative test), that that was not the correct test and that Chan was wrongly decided.
Interestingly, Spender J observed that had the Minister applied the correct test, it would have been open to him to cancel Haneef's visa on the basis of the evidence before him at the time. That is presumably no longer the case, the charges against Haneef having been dropped and the prosecution's case against him generally descending into a farce that the Queensland Premier accurately compared to the Keystone Cops.
The Commonwealth, predictably, announced within hours of the judgment that they would appeal. I'm glad to see that the Commonwealth has adopted a responsible attitude to this litigation, and took the time to thoroughly read the judgment, analyse its implications, and take legal advice on the prospects of an appeal, before they publicly committed to a course of action. I am, of course, being sarcastic. It would be irresponsible to waste public funds on an appeal to the Full Court simply because the government didn't like the first-instance decision, or because it made them look silly.
Interestingly, Spender J observed that had the Minister applied the correct test, it would have been open to him to cancel Haneef's visa on the basis of the evidence before him at the time. That is presumably no longer the case, the charges against Haneef having been dropped and the prosecution's case against him generally descending into a farce that the Queensland Premier accurately compared to the Keystone Cops.
The Commonwealth, predictably, announced within hours of the judgment that they would appeal. I'm glad to see that the Commonwealth has adopted a responsible attitude to this litigation, and took the time to thoroughly read the judgment, analyse its implications, and take legal advice on the prospects of an appeal, before they publicly committed to a course of action. I am, of course, being sarcastic. It would be irresponsible to waste public funds on an appeal to the Full Court simply because the government didn't like the first-instance decision, or because it made them look silly.
Continue reading Haneef visa decision quashed; Govt to appeal.
The Commonwealth Attorney-General Phillip Ruddock has issued a press release (not yet available online) as follows:
ACTION ON ALLEGED FILM PIRACY OF THE SIMPSONS
An investigation in relation to alleged piracy of The Simpsons Movie, demonstrates the Government is serious about protecting creative works Attorney-General Philip Ruddock said today.
Mr Ruddock said the government recently made significant changes to copyright laws introducing a range of measures including the ability to track and recover proceeds of serious copyright crimes, and strengthening evidential presumptions in copyright proceedings.
"Australia has been at the forefront of copyright law reform to ensure that law enforcement and industry have the necessary tools to tackle piracy at all levels", Mr Ruddock said.
"To support the legislative changes, the Government has provided the Australian Federal Police and the Commonwealth DPP with $12.4 million over two years, for investigating and prosecuting serious and complex intellectual property crime, and to pursue proceeds of such crimes."
"Film piracy doesn't only hurt Hollywood, it hurts Australia's film makers, businesses, workers and consumers," Mr Ruddock said.
A search warrant was executed in Sydney yesterday by the AFP following the receipt of information from the Australian Federation Against Copyright Theft (AFACT). As a result a 21 year old man will appear in a Sydney court in October.
If any member of the public has any information related to copyright piracy, they should contact the Australian Federal Police or their local State police.
Note: AFACT has a nationwide 24 hours a day hotline that enables the reporting of film copyright theft: 1800 251 996 and an email contact facility through http://www.moviepiracy.org.au
I take issue with a number of claims made by Mr Ruddock. Setting aside the changes in relation to evidential presumptions (I think it safe to assume that 20th Century Fox would have little difficulty establishing that they own the copyright which subsists in the cinematograph film in question) and the tracing of proceeds (I think it safe to assume that there are none in this case), let's compare the "new" criminal offences with the "old" criminal offences and see whether Mr Ruddock's "significant changes" would make any difference to how this case plays out.
Continue reading Ruddock on Simpsons bootlegging and recent criminal copyright changes.
News.com.au reports that a Sydney man is facing criminal charges because he allegedly made a "boot-leg" recording of the Simpsons movie using a mobile phone, and then uploaded it to "a US global streaming website" - whatever that means. I'm guessing they're referring to Bittorrent or some other P2P technology; "youtube" having entered the popular lexicon, if the bootleg had been put on youtube, I imagine they would have just said so.
The Australian Federal Police are said to have confirmed that they searched the man's house "in relation to allegations of criminal breaches of intellectual property law." The article reports that computer equipment was siezed and that the man faces "charges related to distributing and infringing copyright material and possessing a device for doing so."
This article raises a number of interesting issues...
How did AFACT (the "Australian Federation Against Copyright Theft") and/or the police identify this individual as the alleged uploader? Even if they had his IP address, it could have been anyone in his household or with access to his computer that allegedly uploaded the bootleg copy.
Why are the "infringement notice" provisions that were introduced last year not being used in this case? It could be that the "guidelines" for enforcement of those provisions have not yet been made (or, at least, published), but I'm guessing that AFACT and the relevant copyright holders want to throw the proverbial book at this individual. An infringement notice would only allow for a fine of $1320 and forfeiture of the hardware involved in the infringement. By using the indictable offence provisions, the maximum penalty is 5 years jail, or a fine of $60,500, or both.
Given that AFACT appear to be scapegoating this individual as being responsible for all online "piracy" of the Simpsons movie, I imagine that they will be pushing for serious jail time. It will be interesting to see if there is a repeat of the events in the "mp3wmaland" case, a criminal prosecution of three university students in Sydney in 2003. In that case, counsel representing the copyright holders sought to make submissions on sentencing, and to recover the costs of their privately-conducted investigation from the defendants - and were soundly rebuffed by the court. The defendants in that case received significant -- but suspended -- jail terms, leading the then-head of MIPI ("Music Industry Piracy Investigations") Michael Speck to describe the judgment as "banana republic stuff".
It is also interesting that (if the news.com.au article is correct), the individual under investigation faces an additional charge for possessing a "device". The untested device provisions in s 132AL of the Copyright Act 1968 were controversial when introduced, and are farcically over-broad. I find it bizarre that possession of a mobile phone with intent to use it to infringe copyright should be a criminal offence punishable by 5 years imprisonment. It's not as though it was equipment designed specifically for producing infringing copies. Section 132AL will no doubt feel my wrath in a future posting.
I'll be watching this case with interest.
[Update: The Sydney Morning Herald now has a story on this issue, and AFACT have a press release [.doc file] online.]
The Australian Federal Police are said to have confirmed that they searched the man's house "in relation to allegations of criminal breaches of intellectual property law." The article reports that computer equipment was siezed and that the man faces "charges related to distributing and infringing copyright material and possessing a device for doing so."
This article raises a number of interesting issues...
How did AFACT (the "Australian Federation Against Copyright Theft") and/or the police identify this individual as the alleged uploader? Even if they had his IP address, it could have been anyone in his household or with access to his computer that allegedly uploaded the bootleg copy.
Why are the "infringement notice" provisions that were introduced last year not being used in this case? It could be that the "guidelines" for enforcement of those provisions have not yet been made (or, at least, published), but I'm guessing that AFACT and the relevant copyright holders want to throw the proverbial book at this individual. An infringement notice would only allow for a fine of $1320 and forfeiture of the hardware involved in the infringement. By using the indictable offence provisions, the maximum penalty is 5 years jail, or a fine of $60,500, or both.
Given that AFACT appear to be scapegoating this individual as being responsible for all online "piracy" of the Simpsons movie, I imagine that they will be pushing for serious jail time. It will be interesting to see if there is a repeat of the events in the "mp3wmaland" case, a criminal prosecution of three university students in Sydney in 2003. In that case, counsel representing the copyright holders sought to make submissions on sentencing, and to recover the costs of their privately-conducted investigation from the defendants - and were soundly rebuffed by the court. The defendants in that case received significant -- but suspended -- jail terms, leading the then-head of MIPI ("Music Industry Piracy Investigations") Michael Speck to describe the judgment as "banana republic stuff".
It is also interesting that (if the news.com.au article is correct), the individual under investigation faces an additional charge for possessing a "device". The untested device provisions in s 132AL of the Copyright Act 1968 were controversial when introduced, and are farcically over-broad. I find it bizarre that possession of a mobile phone with intent to use it to infringe copyright should be a criminal offence punishable by 5 years imprisonment. It's not as though it was equipment designed specifically for producing infringing copies. Section 132AL will no doubt feel my wrath in a future posting.
I'll be watching this case with interest.
[Update: The Sydney Morning Herald now has a story on this issue, and AFACT have a press release [.doc file] online.]
