Tomorrow marks the two-year anniversary of the online protests that killed the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) in the US. On the eve of what activists are calling ‘Internet Freedom Day’, we review the situation in Australia where changes in legislation and piracy enforcement look increasingly likely.
Five years ago, I started working on the landmark copyright case between the Hollywood studios and iiNet. At that time, they insisted iiNet should act as a piracy policeman, sending notices to users and in some instances terminating accounts and blocking access to certain websites.
A comprehensive loss in the High Court by no means put an end to the studios’ efforts to force ISPs to police copyright infringement. Through powerful industry groups such as the MPAA (and the RIAA), these large, well-funded rights-holders are lobbying on both domestic and international levels.
The rights-holders have been lobbying for a very narrow view of copyright exceptions and greater enforcement of copyright, including by ISPs, in trade agreements such as the Trans Pacific Partnership Agreement. We’ll be keeping a watch on these discussions, with the next round of ministerial negotiations reported to be scheduled for February this year.
On the domestic front
The Australian Law Reform Commission (ALRC) has now delivered its final report on Copyright to the government. Current copyright exceptions have not kept pace with the digital world, and don’t adequately protect important internet-related activities such as caching or cloud computing. From a consumer perspective, sharing photos (when you don’t own the copyright) on sites such as Facebook and Tumblr is off-limits – unless you have permission from the rights-holder. Or, in a professional context, you can watch a video on YouTube, but you can’t include it in a presentation to colleagues at work, or for a conference. (Check out other examples of how Australia’s current copyright law is out of touch at the Australian Digital Alliance’s #copywrong site.)
The Attorney-General announced in December that the ALRC recommended “the introduction of a flexible fair-use exception as a defence to copyright infringement”, similar to that in place in the US. (There’s a useful explanation of fair use in the ALRC’s Discussion Paper.) iiNet strongly supports this recommendation to introduce fair use and has made a submission to the ALRC in support of a technologically neutral fair use exception which should provide balance and flexibility in Australia’s copyright law.
The ALRC was expressly asked not to consider the role of ISPs in enforcing copyright infringement over Peer-to-Peer networks. Nevertheless, the rights-holders in their joint submission to the ALRC asserted that:
“This inquiry … cannot ignore enforcement if it wishes to have a balanced and principled discussion of copyright law and the digital economy.”
The Attorney-General has said that he’ll take these views on enforcement and the rights-holders concerns about piracy into account when considering the recommendations of the ALRC on copyright exceptions.
So what does enforcement look like?
Our Chief Regulatory Officer, Steve Dalby has previously questioned the effectiveness of the controversial graduated response schemes which continue to be championed by the large rights- holders, such as the MPAA and its Australian branch office, ASA (formerly known as AFACT). Not only is the effectiveness of such schemes very uncertain, they lack due process but also they drive up costs while being detrimental to the user experience.
In Australia, we have the benefit of international experience and research when considering the persistent and increasingly strident calls for more copyright enforcement. Much of this should serve as a timely warning to our government that there are no quick-fix legal solutions to tackling piracy.
It is likely that the large rights-holders are forcefully advocating for new laws to make it easier for them to target ISPs and compel them to block websites such as the Pirate Bay. For example, Foxtel in its submission to the ALRC argued that “parliament should provide the courts with the power to order ISPs to block specific sites. … This legislation would be similar to that used in the UK to block piracy sites, such as The Pirate Bay.”
But does it work?
The effectiveness of such web censorship in reducing infringement is highly questionable and also presents serious risks to both due process and freedom of expression. Boing Boing has highlighted that the Pirate Bay saw a 50% increase in uploads in 2013 and The Guardian reported that the Pirate Bay switched address, for the sixth time, in December and is now planning to launch a browser based on the Tor network which provides a means for users to bypass censored websites while remaining undetectable. Later in December, the Pirate Bay declared “by their actions [the entertainment industry] finally brought on the next generation of decentralised services”.
“For all blocking methods, circumvention by site operators and internet users is technically possible and would be relatively straightforward by determined users. Techniques are available for tackling circumvention, but these are of limited value against sophisticated tools, such as encrypted virtual private networks (VPN).”
Address the “why”
These types of enforcement measures also do not address the growing use of cloud services and streaming for online copyright infringement. If our politicians are considering the type of enforcement powers championed by the large rights-holders, they need to be aware they are likely to find themselves engaging in an ongoing, frustrating and expensive game of whac-a-mole.
Instead, as Steve Dalby has previously emphasised, our politicians should be championing an open Internet. We have always said the root cause of the infringements is the limited accessibility to desirable content and the discriminatory and high cost of content in Australia. Our politicians and the content industry need to recognise that infringements are largely a symptom – access is the problem.