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Module 3 · Fraud, forgery, theft and copyright

What this module covers and why it matters. Module 3 covers the computer-related property crimes. These are the offences committed through computers and networks rather than against them. They are the old crimes of fraud, forgery, theft and copyright infringement carried out by new means. The module sits in the offence half of the subject alongside the integrity offences of Module 2 and it supplies the doctrinal machinery for the fraud-and-property strand of the problem question. A recurring theme runs through it. Australian courts have generally adapted pre-existing offences to online conduct rather than build a separate cybercrime code and so the statutory homes here sit outside Part 10.7 of the Criminal Code. Commonwealth fraud and forgery live in the general dishonesty provisions of Chapter 7 and copyright offences live in the Copyright Act 1968 (Cth). For the research essay the live controversy is whether these old statutes are enough and whether copyright infringement should be a crime at all.

Instruments at a glance

Attack plan

Characterising the conduct and the thing obtained

Fraud is defined at common law as obtaining a monetary or other gain, or causing a loss, through deception. It is traditionally prosecuted under State and Territory laws, with the Commonwealth reaching fraud against the Commonwealth and comparable federal categories (Urbas ch 5). The first analytic step for the Commonwealth offences is to characterise what the defendant obtained, because the deception offences split by the thing obtained. Obtaining property by deception is charged under one provision and obtaining a financial advantage by deception under another (Criminal Code s 134.1; s 134.2).

The deception element and automated systems

Where a fraud is committed by directly altering computer data rather than by deceiving a person, the unauthorised access, modification and impairment offences of Part 10.7 may be the better charge and are often laid alongside the deception offence (Urbas ch 5).

To close that gap, some Australian legislation now defines deception to include conduct that causes a computer, a machine or an electronic device to make a response that the person is not authorised to cause it to make. This allows the deception offences to apply straightforwardly to automated systems (Urbas ch 5).

Forgery

Forgery is a particular kind of deceptive practice involving a false document. Not every document containing a false statement is a forgery. A forged document is one that purports to be something it is not, or that "not only tells a lie, but tells a lie about itself" (Urbas ch 5). Forgery offences apply to the online environment with little difficulty because electronic files are legally recognised as documents, so making a falsified electronic document is included and no cybercrime-specific forgery law is required (Urbas ch 5).

Copyright offences

There are no copyright offences in the Criminal Code Act 1995 (Cth). The criminal copyright offences sit in the Copyright Act 1968 (Cth) Part V Division 5, and the Part 10.7 computer offences may still apply where infringement involves interference with electronic copyright protections (Urbas ch 7). The focus of criminal copyright infringement is organised commercial-scale activity. Individuals downloading pirated songs and films for private purposes may infringe but rarely attract the criminal provisions, so it is a dangerous simplification to say copyright is always a civil matter (Urbas ch 7).

Deception offences and copyright offences compared

Common confusions

Debate

The Debate section is the centre of gravity for the research essay, so each strand is set out as a contest with the leading voices named. Each closes with questions to test a position rather than settle it.

Do pre-existing statutes suffice for new-technology crime? The dominant Australian position is that they do. Courts have adapted existing fraud and forgery offences to online conduct, and the Federal Court has observed that internet fraud involves nothing more than the legal principles that already applied to communication by post, telegraph, newspapers and telephone (Urbas ch 5). Grabosky makes the general version of this argument, that virtual criminality is basically the terrestrial crime we already know and differs in medium rather than in kind (Urbas ch 1). Against this, Brenner points to the "remote perpetrator" problem, where traditional offences strain when the offender, the conduct and the victim are separated by networks and borders (Urbas ch 1). The essay question is whether new technology needs new offences or only new procedure and jurisdiction.

• Which computer-related frauds, if any, could not be reached by an ordinary deception offence?
• If existing offences stretch to cover new conduct, at what point does stretching them become a job for the legislature rather than the courts?

Should copyright infringement be a crime? Urbas records this as a topic of ongoing disagreement, sharpest for individual infringers as opposed to organised gangs. The case for criminalisation rests on the deliberate interference with property rights, which invites analogies to stealing and fraud, and on the significant economic harm to owners and to the industries that depend on copyright (Urbas ch 7). Moohr questions whether copyright infringement satisfies the moral and harm foundations that criminal theory demands of a true crime (Moohr, in Urbas ch 7). Loughlan examines the rhetoric of theft used in anti-piracy campaigns and warns against equating infringement with stealing a physical thing (Loughlan, in Urbas ch 7). Kelcey asks whether the offence provisions protect or merely punish (Kelcey, in Urbas ch 7). The contrary practical case is that prosecuting individuals is heavy-handed, a misallocation of public resources to protect private commercial interests and futile against widespread downloading (Urbas ch 7).

• Does copying a file that leaves the original intact carry the same wrong as taking a physical thing?
• Should the criminal law reach the individual downloader, or stop at the organised commercial pirate?

Prevention through user awareness as policy. Much online fraud depends on the victim being deceived, so a strand of policy argues that better user awareness would prevent most of it. The fraud material supports the intuition. Romance scams, advance-fee scams and phishing all turn on manipulating a person rather than defeating a system, and warning schemes such as Project Sunbird try to reach victims before they send money (Urbas ch 5). The counter-argument is that awareness campaigns reach victims unevenly and too late, that scams specifically target the young, the old and the lonely, and that placing the burden of prevention on users understates the role of enforcement and platform design (Urbas ch 5). For the essay this connects to whether prevention or prosecution is the better centre of gravity for cybercrime policy.

• If a scam succeeds by manipulating a person rather than defeating a system, does responsibility lie more with the user or with the platform that carried it?
• Is it fair to weight policy toward awareness when scams deliberately target those least able to detect them?

Where the criminal line should fall. A related contest is definitional, over what should count as intellectual property crime at all. Speck and Urbas propose a tripartite classification that mirrors the cybercrime taxonomy, dividing conduct into crimes against intellectual property, crimes using intellectual property, and crimes only incidentally involving it (Speck and Urbas, in Urbas ch 7). The classification matters because the criminal offences reach only part of the broader field of infringement. Drawing the line too widely risks criminalising ordinary consumers and drawing it too narrowly leaves organised piracy under-addressed.

• Where should the criminal line fall between the consumer who infringes and the enterprise that profits from infringement?
• Does a classification borrowed from the cybercrime taxonomy clarify the copyright question or merely relabel it?

Discussion prompts

1. Australian courts have generally adapted existing fraud and forgery offences to online conduct rather than enacting new ones. Assess whether this approach is adequate or whether computer-related fraud and forgery need purpose-built offences.
2. Explain how the Commonwealth deception offences distinguish property from a financial advantage, and why characterising the thing obtained matters to the charge.
3. Kennison v Daire held that a machine cannot consent to a transaction. Explain the problem this created for the deception offences and how legislation has responded.
4. Set out the case for and against treating digital copyright infringement as a criminal offence, drawing on the competing positions over harm, morality and enforcement.
5. Budapest art 10 is narrower than Australian copyright law in several respects. Identify those differences and consider whether the narrower treaty standard or the broader domestic one is preferable.
6. Evaluate the claim that most cyber fraud could be prevented by better user awareness, and weigh prevention against prosecution as the primary policy response.