It’s a question of increasing concern to installers – are they leaving themselves open to litigation if they supply and configure a media centre that a client subsequently misuses, for example, to infringe copyright through ripping or file sharing?

The issue is yet to be tested in the US courts, but given the industry clout of the Motion Picture Association of America and the DVD Copy Control Association (CCA), both of which are heavily involved in the push to sue data ‘pirates’ worldwide, it’s a battle that few are willing to start.

The current position seems to be that it depends on what you’re selling, and your knowledge of what your client’s data storage habits are.

But, as an installer, it’s always best to take a conservative approach to protect your business.

The main issue centres on ripping, or digital audio extraction. While there is a minority in the music business that claims that even this counts as theft, it is commonly accepted that ripping for personal use is entirely legal and only becomes a problem if the data is shared or passed on to a person who hasn’t paid for the material.

The law varies from country to country, of course, but any precedent followed in the US, where large commercial interests are at stake, will be likely to gain some acceptance in Australia.

The trouble is ripping, copying, importing, archiving or backing up can be achieved in one of two ways. The legal way; where decryption provisions embedded in the material by the copyright owner remain intact – or the illegal way; where the DVD player ‘gets around’ any decryption measures.

The DVD CCA licenses a Content Scramble System (CSS) which decrypts DVDs. In order for a DVD player to play DVDs legally, the manufacturer must license the software from DVD CCA. Any player that circumvents this decryption software is skirting with illegality, with US manufacturer Kaleidescape currently locked in battle with the DVD CCA over this very issue.

Kaleidescape argues that a customer has a fair-use right to make copies of the DVDs and CDs that he or she owns onto the Kaleidescape system’s hard disk, and no licence is required so long as the copies are for that individual’s personal use.

To date there has been no ruling to contradict Kaleidescape’s position.

The question for Australian installers is, if you’re integrating products with the capacity to override decryption software, are you legally responsible if your client abuses copyright?

“The issue is really a pretty straightforward one legally,” says copyright lawyer and CEDIA legal counsel Michael Leahy. “Here is a metaphor – axes are sold in hardware stores and have many legal uses. If someone uses an axe for an illegal purpose, to harm someone else, you don’t prosecute the person who sold them the axe, do you?”

When it comes to the issue of whether an installer can be prosecuted for helping clients to download unlicensed DVD decryption software, however, the advice is to be more cautious.

“It is a different matter if the item itself is illegal and should not be sold,” says Michael. “If the product itself is illegal and is specifically and solely designed for downloading pirate software, then that’s a problem.”

Installers shouldn’t really touch something they know is going to be used for an illegal purpose, where there is no other possible use for it.

“Installers could be sued if they were selling software which was specifically designed to allow their clients to deliberately create pirate copies – and decryption software would appear to fall into that category.”

“Copyright law is all about protecting the creative people who have made the movie or the music – to stop other people from making money from that unlawfully.”

Australian copyright law since 2006 says it is perfectly acceptable to download music (and other data) for personal use in the home provided it has been paid for. Similarly, where a podcast or television on demand is legally available for download on a website there will usually be licence terms on the site stipulating legal uses of the download.

These conditions might restrict the consumer from making copies of it, selling it, or using it in public displays.

“Downloads for private use are acceptable as long as you stay away from the pirate material,” Michael says. “It’s also perfectly okay to install things which aren’t specifically designed for pirate use – the fact they could be used for pirate use is not your problem as long as you’re not involved with that decision – and it can be pretty hard to prove the installer’s involvement anyway.”

Legal action can be pursued under the tort of unlawful interference with economic interests – if you’re doing something un
lawful which damages somebody else’s business, you can be sued.

“Let’s say the typical home theatre has around 8-10 seats,” says Michael. “Suppose you’re going along for a quote and the guy says he’s putting in a 50-seat home theatre. Well, you might want to ask if he’s charging people to visit the theatre, because at some point there’s a line between private use and commercial use.”

But even where an installer suspected the client intended to use the theatre on a public basis and take money for screenings, it’s unlikely that the courts would regard this as the installer’s problem.

“If it’s a residential home, not a commercial shop front, it would be the client’s responsibility to get appropriate permissions from the local council and to get distribution rights from the film distributors,” Michael says.

The golden rule is, as long as you haven’t been involved with installing something that is regarded by the courts as piracy software, well, you really can’t control your client’s actions and it’s not your job to do so.

If, however, you’re doing the job and a client gives you some crook software and you’re aware that it is illegal, then you’re perfectly entitled to advise them that you’re unable to install the software.

If a client wants to proceed with installing a potentially illegal product, they themselves will be running a risk.

“In truth, the organisations that are likely to issue proceedings are really only interested in chasing the people who are making real money out of it,” he says.

“Installers are just about the last people that anybody would consider taking action against in such a situation, and the worst that could happen is you’d be warned not to let it happen again.

“The client is usually the end target of this sort of legal action – they’re the ones likely to make a gain out of it this activity and have the incentive to repeat the offence.”

Of course, the real world situation is that nobody wants to alienate a good client, especially in this economic climate. It’s a perfectly natural inclination to try to accommodate their requests, particularly where there is no reason to believe that they have an illegal agenda.

Ultimately it comes down to ensuring that, whatever you do to assist a client, you come out of the transaction with a clear conscience.