Filtering Australian’s Internet is something all good politicians learned to avoid long ago after the fiasco that was Labor’s Clean Feed. It quickly turned from being what seemed like an easily defensible policy (Think of the children!) to the horrendous mess that it was, something that threatened the very core of what the Internet was built on. Thus any policy that dares to tread similar ground has, for the most part, been put down long before the legislation makes it to the floor of our parliament. However it seems that, in true Liberal fashion, our current government wants to put a filter in but is flatly denying that that’s what they’re doing.
Last year Brandis and Turnbull got in cahoots with each other to start devising some reforms to Australia’s copyright system, most likely in response to some of the secret Trans-Pacific Partnership talks that have been going on. These reforms largely ignored the actual problem and instead adopted the reactionary measures that other countries have adopted, all of which have proven ineffective in curbing copyright infringement. However one of the measures, the requirement for ISPs to block links to infringing content when contacted, had a strange bit of familiarity of it.
It sounded an awful lot like an Internet filter.
When he was made aware of this comparison Turnbull was quick to distance it from the idea, calling it “complete BS”. However whilst you might not want to call it a filter (obviously for fear of being tarred with the same brush, but I’m about to do that anyway) it, unfortunately, has all the makings of Internet filter. It’ll be overseen by the courts, which likely means there’ll be some kind of central list of blocked content, which all ISPs will be required to block using whatever means they have. If you cast your mind back a few years you’ll see that this was pretty much identical to Labor’s voluntary mandatory system, the one that was dumped for “budgetary” reasons.
The time has long since passed when this was just an issue for the technical elite and freedom of speech warriors of Australia as the entire country is far more invested in its access to the Internet than it ever has been. We want it to be fast and unfettered, ideals which the current government seems hellbent on trashing in order to appease big businesses both here and overseas. Unfortunately for them it looks like they’re slow learners, unable to recognise the mistakes of their predecessors and are simply dooming themselves to repeat them. Not that this was entirely unexpected, but that doesn’t stop it all from being just as rage inducing.
Copyright law in Australia isn’t as cut and dry as many believe it to be. Whilst some of our laws are in line with what the general public thinks they are (I.E. United States based) there’s a lot of things that are more draconian, like the lack of safe harbor provisions, and others that are a lot more lax like the lack of any formal infringement notification systems. This has often been cited as one of the main reasons why piracy is so rampant in Australia although that’s really only a minor part of the equation. Still this hasn’t stopped rights holders from lobbying members of our parliament into getting the laws changed and a recently leaked discussion paper, from the offices of Senator Brandis and Minister Turnbull, showcases a rather disturbing future for Australian copyright.
The discussion paper reads as a wish list of measures that rights holders would like to see implemented that would be used to curb copyright infringement behaviour within Australia, taking inspiration from similar schemes overseas. The proposed measures will be familiar to anyone who’s been involved in the copyright debate ranging from requiring ISPs to take “reasonable action” against infringing users (something our High Court has ruled against in the past), blocking websites that facilitate infringement and the measures required to support those processes. There are some potential positive questions for discussion in there, like the expansion of safe harbor provisions, but the rest of them will only cause more headaches than they will solve.
The first discussion point around ISP’s taking “reasonable steps” towards discouraging users from engaging in copyright infringement is a blatant attempt to skirt around the high court’s previous ruling that there are no such steps that an ISP can take. Essentially it comes down to a question of liability as increasing the exposure that the ISPs have make them a better target for litigation than the thousands of individuals beneath them do. The worst thing about this is that it will most certainly lead to increased costs for consumers with no benefits for anyone but the rights holders themselves. Honestly this smacks of the “mandatory voluntary” system that Conroy proposed, and then swiftly abandoned, all those years ago. If it didn’t work then I fail to see how it could work now.
The second point revolves around blocking some sites outright which they’re proposing to do at the ISP level. Now the paper doesn’t go into details about how the site would be blocked, just that injunctions could be granted, however we know that whatever method they use will end up being ineffectual. DNS blacklisting, IP blocks and all other methods that other countries have used in the past simply do not work in an environment with users with a modicum of technical experience. Heck there are dozens of browser extensions which help with this and there’s already a healthy number of Australians completely circumventing any ISP level blocking through the use of VPNs. So realistically the discussion point about what matters should be considered in granting an injunction are moot as it won’t stop the site from being available.
The last 3 points dig into what the impacts will be (both in terms of reducing infringement and the cost to business) as well as asking if there are any alternative measures that can be taken. Honestly I feel these are the points that should be front and center rather than the previous two I mentioned as this is the real crux of the copyright issue in Australia. In terms of the discussion paper though they feel like afterthoughts, each given a brief paragraph with a one liner question following them. It really looks like the other points are, essentially, already agreed to and these are just there to placate those who feel that they need to have their voice heard.
What this discussion paper completely misses is the real issue here: the lack of content systems that are on the same level available overseas. The Australian tax is no longer just catch cry, it’s a fact, and the residents of this country have voted with their wallets. Indeed the high use of Netflix within Australia shows that we’re ready, willing and able to pay for the services should rights holders be willing to provide them but instead this paper wants to focus on the stick rather than the carrot.
If Brandis and Turnbull are serious about copyright reform in Australia they should be looking into what they can do to encourage those services to come Australia rather than attempt to dissuade people from pirating their content. History has shown that the latter can never be prevented, no matter what legislation you put in or DRM you attempt to ram down the customer’s throats. The latter has a tried and true history of being successful and I have no doubts that rights holders would see similar success in Australia should they choose to bring their services here. For now though it seems like they’re still stuck in the past, trying to protect business models that are failing in the new Internet powered economy. They’ll have to come around eventually, it’s just a question of whether they do it before someone else does.
Oh wait they already are. Time to wake the fuck up.