Rip an MP3 - go to jail for ten years

Matt Loney: Copyright laws are undoubtably useful, but does a violation really deserve a sentence of ten years in jail?

From this week, if you live in the UK you can be sent to jail for up to ten years for making, dealing with or using illicit recordings -- that is, infringing copyright. That is a longer sentence than that which one might expect to see handed down to a convicted murderer, rapist or even paedophile.

Now consider that every MP3 file downloaded from the Internet could be classified as an illicit recording. Scary, isn't it? Well, it caught your attention anyway, and in a way that simply reporting the enactment of the Copyright, etc. and Trade Marks (Offences Enforcement) Bill would not. And in fact it probably will not be quite as bad as it sounds, although it could if we are not very careful lead us down the slippery path that the US Congress, pushed by big business, has found itself slithering and sliding uncontrollably down.

In one sense we should be grateful. In practice you are unlikely to spend ten years in the clink for downloading an MP3 file. Furthermore -- and despite the efforts of some industry bodies such as the Alliance Against Counterfeiting and Piracy -- there is no criminal offence relating to circumvention of copy protection devices. For this the government should be applauded, although it probably will not be long before we have our own version of the controversial US Digital Millennium Copyright Act here, which makes it a criminal offence to build a device (or write code) that lets you make perfectly legitimate backup copies of protected songs, software or other intellectual property.

Even if we don't get our own DMCA there is a chance that we could, in this brave new world of borderless technology, be brought to trial in the US for doing something here that would, if we were in the US at the time, be illegal. That's what happened to Russian programmer Dmitry Sklyarov and his employer Elcomsoft, which now faces trial in the US for not committing a crime on Russian soil. It's ironic that Elcomsoft will be standing trial in the country that refused to sign up to the International Criminal Court in case its citizens were hauled abroad to stand trial in a foreign jurisdiction even though they may not have committed a crime under US law.

Go figure.

So right now we're left with an updated copyright law which, while slightly onerous, is far better than what the big media companies had wanted. By media, I mean record labels, movie studios and software companies.

Although copyright law is a relatively recent phenomenon (the Romantics, led by William Wordsworth, pushed through the law here in the early 19th century even though Wordsworth himself used to steal work from others), we have grown generally used to the idea. And few would now argue that some form of copyright law is not useful. Examples we regularly see here at ZDNet UK range from cheeky one-offs to systematic abuse. One of the cheekiest one-offs involved a story that was reproduced elsewhere word for word with a new author's name at the top and a copyleft licence at the bottom, which basically said that verbatim copying and distribution of the article was permitted without royalty in any medium provided the (bogus) author was credited.

That sort of thing raises my hackles, but it hardly warrants a ten-year prison sentence. And nobody would really expect the full force of the new copyright law to be used against in such circumstances. Indeed it shouldn't. One of the features of a liberal society is that people have the freedom to break laws; of course in most civil societies there are plenty of pressures to stop people from doing so, not least of which is deterrents in the form of fines, community service or prison terms, but the freedom is there. The alternative, where citizens are actively stopped from breaking laws, is surely best known as a police state.

So in the UK we appear to have struck a balance -- whether it's good or bad I'm not quite sure. In the past there was the frustrating position whereby a counterfeiter producing a high volume of fake music CDs could be prosecuted for having used the band's trade mark on the inlay card on the CD, but the act of infringing copyright by copying the music on the CD was not deemed serious enough to take action over. That disparity has now been resolved.

Also, the Act will give the police strengthened search powers where criminal copyright infringement is suspected and give greater powers to confiscate counterfeit goods. Of course we're talking large-scale counterfeit operations here -- the police are not going to come knocking on your door at 3.00 a.m. to remove your iPod.

Meanwhile for legitimate copying of copyrighted works, there could be help around the corner. One section of the community that is being hit particularly hard both by copyright legislation and by anti-copying technology is the visually impaired, who are not always able to access copyright material in the form in which copyright owners have produced it. For these people, another private member's bill called the Copyright (Visually Impaired Persons) Bill is on the cards. If it passes through parliament without too much interference from industry lobbyists, this Bill will remove some of the difficulties facing visually impaired people who need conversions of copyright material into alternative formats, while balancing any solution with the rights of copyright owners.

The Bill proposes that single alternative format copies can always be created without permission, as long as this is done on a non-commercial basis. This is what has always been known as the 'fair use' clause in copyright laws, and one that we remain in danger of losing. Well, it's nice to know some people can see sense.

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