Peter Black, an associate lecturer in law at the Queensland University of Technology, hosts this month’s Blawg Review on his Freedom To Differ blog, which focuses on the legal regulation of the internet and the media, providing an extensive selection of great links for the IP/media lawyer in particular.

One that caught my eye was to Weatherall’s Law: IP in the land of Oz (and more) which explains why Australian copyright law is about to criminalise a good proportion of its population. Are you a criminal for using your iPod? analyses the effect of the new Oz Copyright Amendement Bill which, by s132AL makes it a strict liability offence to possess a device which is to be used for copying material protected by copyright where a copy is infringing. iPodders will be criminals because:

– copies made on iPods are currently infringing copies (because there is no exception for private copies/format shifting). The new law proposes a format-shifting defence, but on the current draft, that exception does not in fact legalise iPod use (because most iPod use involves people making – and keeping – two copies in mp3 format)

– thus, if you have an iPod, it (under the current draft) is a device which will be used for making infringing copies – hence possessing it is a criminal offence.

Now, to avoid this result, all the government has to do is (a) draft the iPod exception properly, to fit the technology, and/or (b) remove the strict liability offence.

In a world where once you digitise content you have to wave it goodbye you have to ask yourself whether almost unenforceable criminal or civil liabilities are the answer against the casual infringer who for the most part sees little or nothing wrong in what they are doing. Didn’t we learn that taping is not killing music?

The recording industry and its brethren have been crying wolf for years. At various times we have been told that the pianola was going to kill sales of sheet music, that radio was going to kill sales of records, that photocopying would kill sales of books, that the VCR would stop people going to movies …

Along the way we have been told that the use of the latest technology was immoral – everything from the photocopier to the cassette recorder to the VCR.

[Chicago University economist Stan] Liebowitz says we are in the middle of a “wonderful natural experiment” which will determine fairly quickly whether the latest high-tech copying machine causes the sort of damage the other machines didn’t. He adds that from an economist’s point of view it would be no real disaster if it did. The present recording industry would be replaced by something better able to make money in the changed environment.

This from 2003. Now I’m not a fan of the unfettered market, but you have to accept that it, rather than copyright law, appears to sort the problem out so far as the man in the street is concerned. Reasonably-priced iTunes tracks divert at least some of us some of the time from illegal music downloading. So too low-priced DVDs sell by the truckload in place of illegal movie downloads; and as broadband speeds increase the move will be to lower-than-currently-priced iTunes movies. (According to recent research only 14% of broadband households would be interested in iTunes movie downloads priced at $15 each.)

That sorted we can address commercial re-use and genuine pirates.