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Australia Media Piracy The Almighty Buck Entertainment

UNSW Has Collected an Estimated $100,000 In Piracy Fines Since 2008 98

Jagungal (36053) writes The SMH reports that The University of NSW says it has issued 238 fines estimated to total around $100,000 - to students illicitly downloading copyright infringing material such as movies and TV shows on its Wi-Fi network since 2008. The main issues are that the University is not returning any money to the copyright holders but is instead using the money raised for campus facilities and that it is essentially enforcing a commonwealth law.
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UNSW Has Collected an Estimated $100,000 In Piracy Fines Since 2008

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  • by Capsaicin ( 412918 ) * on Thursday November 20, 2014 @06:39PM (#48430457)

    Huh? What's the confusion here?

    The fines that UNSW are levying are for breaches in the terms (or rules) by which students access the institution's network services. What power would UNSW have to "[enforce] a commonwealth law?" Most obviously you'd think this would either be under the contract between the students and the uni, or pursuant to the act by which the university is established, University of New South Wales Act 1989, s27 [austlii.edu.au] of which gives the university power to make it's own legislation. I thought these copyright holders might have talked to their lawyers (that was about 45secs of legal research there) before sticking their hands out ... oh wait.

    • by Kaenneth ( 82978 ) on Thursday November 20, 2014 @06:42PM (#48430473) Journal

      Correct, a Fine is a Punishment, not Restitution.

      • If the University is "fining" the students and not turning them over the the proper authorities how are they not complicit in the theft exactly? What they are doing is exactly the definition of racketeering.

        Racketeering refers to criminal activity that is performed to benefit an organization such as a crime syndicate. Examples of racketeering activity include extortion, money laundering, loan sharking, obstruction of justice and bribery.

        Students give the University hush money, gets a slap on the hand "oh noez, no free wireless for up to a few months" and the University profits. Copyright holders are not seeing a penny of this money, Law enforcement is not prosecuting people for theft.

        Should the University fine rapists for profit and

        • by lgw ( 121541 )

          Students give the University hush money, gets a slap on the hand "oh noez, no free wireless for up to a few months" and the University profits. Copyright holders are not seeing a penny of this money, Law enforcement is not prosecuting people for theft.

          In what way is downloading copyrighted material any kind of crime? Is it even a tort?

          Should the University fine rapists for profit and not turn them over to Law enforcement as well? Oh wait, this already happens in the US (if people are charged at all)

          What are you on about? The standard for accusation at a US university is vastly below any judicial standard for rape. At some places, the accused isn't even given a chance to defend himself.

          "Harvard's policy was written by people who think sexual assault is so heinous a crime that even innocence is not a defense." -- Alan Dershowitz

          • by s.petry ( 762400 )

            What are you on about? The standard for accusation at a US university is vastly below any judicial standard for rape. At some places, the accused isn't even given a chance to defend himself.

            Hahaha, here are two words for you to research. Penn State.

            After those two words, there are plenty of other Universities for you to investigate and see what happens with reported crimes. UCxx would be another great piece of research.

        • If the University is "fining" the students and not turning them over the the proper authorities how are they not complicit in the theft exactly?

          The university is fining (no scare quotes) the students for breaching the by-laws of the university.

          What they are doing is exactly the definition of racketeering:

          Racketeering refers to criminal activity that is performed to benefit an organization such as a crime syndicate. Examples of racketeering activity include extortion, money laundering, loan sharking, obstruction of justice and bribery.

          The activity of the university is not criminal. What crime, if any, do you think has been committed by anyone in this scenario? The activity is not being performed for the benefit of any organisation,

          • by s.petry ( 762400 )

            The university is fining (no scare quotes) the students for breaching the by-laws of the university.

            We know why they are fining, it says so in TFA. We also know that this relates to illegally downloading Copyrighted material. Downloading Copyrighted material without permission of the owner is also illegal. The University is not bothering to notify either the Copyright owner or Law enforcement that the student is breaking the law.

            You are trying to argue that based on the technicality of the verbiage for the "fine", the University is not obstructing justice and coercing students into paying them money wh

            • Downloading Copyrighted material without permission of the owner is also illegal.

              If it is unlawful, is it criminal? By which I mean to ask, please point to the provision(s) of the Copyright Act 1968 [austlii.edu.au] which makes it an offence to download protected sound-recordings.

              The University is not bothering to notify either the Copyright owner or Law enforcement that the student is breaking the law.

              Under what obligation would the university be to report a student not committing a crime? Under what obligation is an

              • by s.petry ( 762400 )

                If it is unlawful, is it criminal? By which I mean to ask, please point to the provision(s) of the Copyright Act 1968 [austlii.edu.au] which makes it an offence to download protected sound-recordings.

                Downloading copyrighted materials is not covered under US Copyright law, and it would appear that you are grasping for a plank to hold on to. Low and behold your plank is not there! Instead of performing your due diligence [wikipedia.org], you tried to cherry pick something you thought would keep you floating instead of spending a few minutes to research. For posterity, a few minutes is a gross exaggeration.

                In what possible way is the university obstructing justice?

                I gave three other examples and you just pretend that they did not exist. I should not go back the post you respo

                • Notice: If you post anonymously do not expect a reply.

                  Thanks for that promise. I'd like to take the opportunity to withdraw my statement to the effect that I believed "your system architecting is conducted with great mental discipline, expert knowledge and professionalism." You last post has left me doubting whether that is in fact possible.

          • They are in effect profiting from piracy, while also being complicit in the offending. The fact that this is legal under the current interpretation of law is more reflective of a fucked up judicial process than anything else.
            • They are in effect profiting from piracy, while also being complicit in the offending.

              It's true that they are taking money they would not otherwise do, however the charge of complicity might be more fair if they were not also removing network access from the offending students. Remember a fine is the usual way (as envisaged by the empowering legislation) for punishing a breach of university rules, disconnection (probably not foremost in the mind of parliament in 1989) is the exceptional punishment here.

              I

    • I don't think it is nearly so clear as that. If the University is fining them instead of blocking their access and is failing to prevent the copyright violations that it is benefiting financially from then they might indeed have significant liability; even moreso if the fines are not based directly on law, but on a contract. In that case they're "fines" in name only, and actually just contract revenue based on known copyright violations.

      I'd say those media companies are going to get some sort of settlemen

      • FTA:

        The university also disconnects guilty students from its network for as long as a semester.

        • FTA:

          The university also disconnects guilty students from its network for as long as a semester.

          Just for the record, that supports what I was saying. Perhaps you missed my point and assumed I was in [some box]. Just assume I meant what I said and I said what I meant, and you'll have better luck understanding my point.

          They got the extra contracted revenue, reconnected the person, and probably bear some responsibility that they would not bear had they not been profiting. That extra profit makes it dubious that they are just a neutral carrier. They are involved in the content, they are profiting from it,

      • Unlikely.

        The university can fine you for parking violations, smoking where you're not supposed to, being in wanton possession of whatever.

        Should they want to turn your name over to another entity with whom you've performed allegedly bad behaviour, they can do that. Or not, should it suit them.

        • Unlikely.

          The university can fine you for parking violations, smoking where you're not supposed to, being in wanton possession of whatever.

          Should they want to turn your name over to another entity with whom you've performed allegedly bad behaviour, they can do that. Or not, should it suit them.

          None of those involve a company with a legally legit tort that is being profited from, so while those might seem like comparable things, they're not.

          If the University was "fining" students for parking on private property not owned by the University, and that is actually a pay parking lot, and they have no agreement with the lot owner to collect rents for parking there, and the "fine" isn't a fine established by law but actually a contract provision between the University and the student... then that lot own

      • [I]s failing to prevent the copyright violations that it is benefiting financially from then they might indeed have significant liability

        They are acutely aware of potential liability. UNSW were the defendant in the leading Australian case about what liability flows from providing equipment which might be used in copyright infringement (University of NSW v Moorhouse [1975] HCA 26 [austlii.edu.au]). This, I'd guess, is exactly why they are coming down so hard on their students here.

        The university has no power to collect f

        • Just because they're aware of the problem and reacted strongly is no guarantee that they successfully avoided liability. The stronger their response, the more possibility there is for expensive human error.

          Preserving protections as a neutral, unknowing middle-man is generally premised on seeing no evil, hearing no evil, and speaking no evil. Getting heavily involved to where they have admitted in all these specific cases to have seen the evil and received revenue for having seen it is just not the usual for

          • Just because they're aware of the problem and reacted strongly is no guarantee that they successfully avoided liability.

            Of course. As I wrote, "[it] must surely be taken as a mitigating factor."

            what right do they have to collect for their own benefit, based on content they don't have right to sell?

            They have a right, as I mentioned above under s27 to levy fines (whether in this particular instance is, as always, arguable, but also not entirely relevant). They are not collecting money for copyright inf

      • If the University is fining them instead of blocking their access and is failing to prevent the copyright violations that it is benefiting financially from

        Some universities already have copyright clearance agreements in place, due to concerns of copyright material being duplicated in libraries, these agreements may allow the university or library to generate income as a means of cost recovery of any expenses from administering the program, and an incentive for enforcement.

        Since approximately 1% (or less than $1000 total, divided amongst all the Top of the Pops artists for the past 6 years) of the proceeds would likely end being paid to the artists, songwrite

    • by mjwx ( 966435 )

      Huh? What's the confusion here?

      The fines that UNSW are levying are for breaches in the terms (or rules) by which students access the institution's network services. What power would UNSW have to "[enforce] a commonwealth law?"

      More over, which commonwealth law (that would be a federal law for the Americans playing along at home) are they enforcing?

      As yet, there isn't a criminal code for copyright infringement, it's a civil matter.

      As the parent said, universities have the ability to make their own legislation that is enforceable. Most universities use it for things like parking (which is at a premium), vandalism, plagiarism, smoking on campus and other acts that are too minor to get the police involved in. Although universities ar

      • As yet, there isn't a criminal code for copyright infringement, it's a civil matter.

        Not quite accurate. There are actually a number of instances where copyright infringement can become a criminal act. There is a cost level at which the infringement becomes illegal, I believe if that value is higher than $5000 off the top of my head. You can also be charged if you release copyrighted material prior to the international release date. This happened to a Sydney guy who released a pirated copy of the Simpsons movie prior to its release date.

        You will also fall foul of a criminal charge if yo

    • by mysidia ( 191772 )

      The fines that UNSW are levying are for breaches in the terms (or rules) by which students access the institution's network services.

      However, in this case, it means that the university is benefitting from the copyright infringement being conducted on their network, since they are collecting a 'fine', or a 'fee'.

      I don't know about NSW, but in other jurisdictions if you knowingly profit from the infringement (charging a fee to the infringer), and you facilitate the infringement (by providing the computer

      • [T]hey are collecting a 'fine', or a 'fee'.

        They are very clearly collecting a fine not a fee. It is not for goods or services rendered or to be rendered, but as punishment for breach of the university by-laws.

        I don't know about NSW, but in other jurisdictions if you knowingly profit from the infringement (charging a fee to the infringer), and you facilitate the infringement (by providing the computer network), then you become liable for the infringement as well, or you may be a contributory infringer.

        T

  • by Truth_Quark ( 219407 ) on Thursday November 20, 2014 @06:50PM (#48430505) Journal
    That would have gutted me when I was at uni.
    • I got $420 on average, which is $362 USD.

      Still a kick in the pants for a college student.

    • "I think a $640K fine should be enough to gut every student." -- Bill Gates

    • In the US for most students it would just increase the debt load because of the way the credit limits are calculated based on expenses, and the fact that the "fine" isn't a real legal "fine" but just an extra charge.

  • Or hold Court under authority of the Crown, with a sworn Judge and a panel of jurors? Because if it doesn't then they have no legal authority to issue fines. In England this would be covered under Fraud Act 2006 sections 2, 4, 6 and 7 (that's 4 separate INDICTABLE criminal charges with a concurrent maximum sentence of ten years).

    Boom, motherfuckers.

    • by PopeRatzo ( 965947 ) on Thursday November 20, 2014 @07:09PM (#48430607) Journal

      Boom, motherfuckers.

      I can't speak to the accuracy of your argument or your citation, because I just don't know, but out of admiration, I'm going to end every one of my Thanksgiving political discussions with family members with "Boom, motherfuckers."

      • In Victoria this would probably be enforced under the "civic compliance" court or the sheriffs office, for example private entities such a toll roads can issue infringement notices for such trivial offences as a late payment of a toll. It looks like the UNSW is using contract law, fines are a common feature of contracts, more so in business to business contracts.
    • In most countries anybody can add a "fine" to contract terms. Legally it is just regular revenue, using the word "fine" doesn't create any special requirements or restrictions, or require any legal authority. The authority comes from agreeing to the contract.

      • In most countries anybody can add a "fine" to contract terms.

        At common law (and certainly at Australian law) contractual terms imposing a penalty (in excess of the loss which could be recovered or a fair quantity of liquidated damages) is void and unenforceable. (look up 'penalty provision' or 'penalty clause') I ought never even have floated the possibility that this was contractual, my bad. As I wrote to you above "the rule regarding contractual penalty provisions ... [make it] unlikely that this i

        • Oh, good, in that case nobody has to pay early termination penalties.

          • Oh, good, in that case nobody has to pay early termination penalties.

            Are you always this impudent when presented with new information?

            As I wrote "... in excess of the loss which could be recovered (here lost potential earnings) or a fair quantity of liquidated damages (via an agreed termination clause)." At common law a clause allowing you to recover, via termination penalties more money that you could have have possibly earned under the entire contract, would be judged to be a penalty clause [wikipedia.org] and would t

          • Before I go, I'd hate to leave you with the impression (as the Wikipedia article might), that penalty clauses will always and in every case be unenforceable. A famous exception flowing from the decision in Peachy v Duke of Somerset (1720) 1 Strange 447 [93 ER 626] where the penalty doctrine will not protect you from a penalty clause should the loss to the other party not be quantifiable in money terms.

            The point is that law is never simple. The best wishes of the layperson notwithstanding, the Law cannot e

    • Does Video2000?
      Does the hotel who's room you just wrecked?
      Does the rental car company who's car you returned dirty and without refilling the tank?
      What about the cab you threw up in?

      You most definitely can issue any fines you want in a legal contract, such as the one I guarantee people were presented with before they got access to the university's network.

    • In England this would be covered under Fraud Act 2006 sections 2, 4, 6 and 7 (that's 4 separate INDICTABLE criminal charges with a concurrent maximum sentence of ten years).

      You are talking rubbish. Organizations issue fines all the time in the UK e.g. libraries can fine you if you are late returning a book etc. I doubt every library has a sworn judge and a panel of jurors on hand to adjudicate your fine.

      Any organization can levy a fine through an agreement. Students typically sign that they agree to be bound by the terms of the university's code of student conduct in before they are allowed to enrol. That code will undoubtedly contain the relevant clauses allowing a discip

  • by Anonymous Coward on Thursday November 20, 2014 @07:13PM (#48430631)

    Do they get fined just a little bit more for having the luxury of being fined in Australia?

    • Do they get fined just a little bit more for having the luxury of being fined in Australia?

      Funny *and* insightful

      Wish the mod system could do that.

  • by Trogre ( 513942 ) on Thursday November 20, 2014 @07:26PM (#48430691) Homepage

    Are these fines actually for copyright infringement, or for mis-use of University resources? This is an important distinction.

    I doubt the University could legally collect on the former, unless they also happen to be the copyright holder of the obtained content.

    If the latter, then students downloading free content (eg material covered by a Creative Commons licence) for personal use should also be liable.

    • If the latter, then students downloading free content (eg material covered by a Creative Commons licence) for personal use should also be liable.

      Liable for what? Downloading copyright content without authorization? Does the Creative Commons license not allow downloading the material covered by it? How quaint.

      Mis-use of University resources is defined by the University, and it can quite easily include clauses regarding unauthorized downloading of copyrighted material, etc.

      • by Trogre ( 513942 )

        I meant the case of using University bandwidth to download content for personal use, that could trigger a fine depending on the University's Internet use policies. The licence of the content in that case is irrelevant.

        Mis-use of University resources is defined by the University, and it can quite easily include clauses regarding unauthorized downloading of copyrighted material, etc.
        I do agree with you there, and in that case the licence would be relevant.

        • I meant the case of using University bandwidth to download content for personal use,

          I doubt that any university has a prohibition against students downloading things for "personal use". I know mine doesn't. There are policies against personal use of departmental systems for employees, but not students. We have a policy against commercial use, and a student running his online business out of his dorm room was cut off, but that's well beyond "for personal use".

          If they are fining people for piracy, then the policy will be against piracy, not simply "anything for personal use."

  • by camg188 ( 932324 )
    FYI
    NSW = New South Wales
    SMH = Sydney Morning Herald

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