Police sources have told The Advertiser an official investigation, which could lead to criminal charges, will not be conducted because of the large number of police officers involved in copying DVDs.
…which would be a novel defence for other defendants to rely on (there is no lack of “data” from copyright ideologues about how widespread infringement is. In any event, as copyright is a Federal statute, the AFP should probably be investigating?
The article also reports that:
The Australian Federation Against Copyright Theft said it would write to Mr Hyde to seek an explanation.
AFACT is going to press for police officers to be charged with copyright related offences? Pull the other one. Copyright litigation is about choosing soft targets with publicity value. I haven’t heard of any litigation in the last twelve months.
Depending on how broadly you read the Act, there has arguably been a crime committed here – but it’s by management, not by the officers. If you’ll remember my ACTA post and remember what the BSAA has to say about Australia’s version:
The FTA legislation also introduces a new offence relating to significant infringements of copyright whether or not these have any direct or indirect financial gain to cover situations such as large-scale piracy not in a commercial business and Internet piracy where illegal software may be distributed for free. Under new sections 132 (5) (DB) and (5) (DC) [note: these provisions were replaced by 132AC et al by no 156 of 2006] it is a criminal offence if a person engages in infringement of copyright on a commercial scale and it has a substantial prejudicial impact on the copyright owner.
An important aspect of the legislation is that it can be considered a criminal offence if a person knows or “ought reasonably to know” that software is infringing copyright. Mr Macnamara said company directors and managers needed to take careful note of this as their company could potentially be held liable even if they the directors are unaware or not directly involved in piracy. Company directors and managers in some circumstances can also be personally prosecuted.
This is, in fact, exactly the situation that copyright ideologues wanted to be covered by this legislation. They wanted the legislation specifically designed to be able to take executives to court. So, on the maximalist view, and assuming that the copying was infringing, then there’s a very real issue about whether the supervising officers have committed an offence (see the ACTA post for the wording). Arguably, they have “engaged in conduct” (by not doing anything about the practice, or failing to have proper systems in place to prevent it) which has “resulted in… infringements” and “the infringements have a substantial adverse impact …” and “the infringements occur on a commercial scale” (because of the “large number of police officers” involved). They would, of course, need to meet the intention requirement, which for this offence is just “negligence” (a higher level of criminal intent gives rise to a longer jail* sentence). Individual officers might also satisfy this if they made copies of sufficiently many movies – if they were movie swapping, there would be a real question to answer.
I think if you were to ask The Man on the Bondi Tram they’d probably say that no one should be pursued because no one has actually done anything wrong here, it is the law which is bad. On another, if they’ve broken the law they should be pursued. If they are not pursued it will show what a sham the Copyright Act is.
* ie gaol
 To take it a step further, if the licence terms for the software prohibit its use for infringing purposes, then running the software (in breach of the licence terms) may itself give rise to further grounds of action or offences.
 Unless the section is repealed. A repeal would at least bring Australia away from the lunar right and into line with world’s best practice on the issue.