Laws Can't Stop The March of Technology, Australian Judge Says

Bob Preston
SYDNEY — An Australian Judge said that the march of technology is unstoppable, and laws aren't enough to protect consumers' privacy or corporations' copyrights.

High Court Justice Michael Kirby voiced his opinion about the state of Internet technology while considering his nation's Privacy Act, which regulates how much information companies can collect about consumers online.

Currently, the law requires that data collected about a person can't be used without their consent. Kirby doubts the government's ability to enforce that law.

"It was a good moral and ethical principle to keep people's control over the usage that was made of the information ... And then along came Google and Yahoo," Kirby said. "And when the new technology came, there was a massive capacity to range through vast amounts of information. The notion that you could control this was a conundrum."

Adult industry lawyer Ira Rothken agreed. He told XBIZ that the proliferation of information-gathering and content-sharing technologies have highlighted the growing tension among privacy, fair use and copyright concerns.

"Here's the problem: It's hard to enforce copyright laws on the Internet, because it's hard to keep track of who's doing what unless you gather a lot of information about them so you can keep track of what they do with your content," said Rothken, a managing partner of the Rothken Law Firm.

So what's the solution? Justice Kirby said that lawmakers need to put checks on large corporations to make sure they don't abuse their technologically given ability to collect massive amounts of data.

"To do nothing is to make a decision to let others go and take technology where they will," he said.

Rothken said that focusing on the context of individual cases that deal with free speech, fair use, copyright and privacy should help adult industry professionals find the right balance, though he also offered some advice.

"It all depends on context," Rothken said. "Content owners in adult need to be more thoughtful and careful about what arguments they make against fair use, because fair use and free speech go hand-in-hand. They might be better served by being more liberal when it comes to fair use."

Chicago-based adult industry lawyer J.D. Obenberger mostly agreed with Rothken. He told XBIZ that the fight to regulate these new technologies isn't over yet, and he added that even though adult producers should fight to protect the copyright on their content, he cautioned against the use of Digital Rights Management (DRM) and other regulatory software.

"Anything you do to protect your content is going to make more headaches for your legitimate customers who ought to be able to store the videos they've already paid for once," he said. "Most producers don't use DRM – they attract people by looking forward and making more and more content."