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.
For over 100 years rights holders have resisted any changes to their business models brought about by changes in technology. From a business perspective its hard to blame them, I mean who wouldn’t do everything in their power to ensure you could keep making money, but history has shown that no matter how hard they fight it they will eventually lose out. Realistically the world has moved on and instead of attempting to keep the status quo rights holders should be looking for ways to exploit these new technologies to their advantage, not ignore them or try to legislate them away. Indeed if other industries followed suit you’d have laws preventing you from developing automated transport to save the buggy whip industry.
The copyright system that the USA employs is a great example of where legislation can go too far at the request of an industry failing to embrace change. At its inception the copyrights were much like patents: time limited exclusivity deals that enabled a creator to profit from their endeavours for a set period of time after which they would enter the public domain. This meant that as time went on there would be an ever growing collection of public knowledge that would benefit everyone and not just those who held the patent. However unlike the patent system copyrights in the USA have seen massive reform in the past, enough so that works that would have come into the public domain will probably never do so.
Thankfully, whilst the copyright system might be the product of an arms race between innovators and rights holders, that hasn’t stop innovation in the areas where the two meet. Most of this can be traced back to provisions made in the Digital Millennium Copyright Act (DMCA) that granted safe harbour to any site that relied on user generated content. In essence it put the burden of work on the rights holders themselves, requiring them to notify a site about infringing works. The site was then fully protected from legal action should they comply with the request, even if they restore the offending material after receiving a counter claim from the alleged offender. Many sites rely on this safe harbour in order to continue running on the web because the reverse, them policing copyright themselves, is both technically challenging and resource intensive.
However just like all the technologies and provisions that have been made for the rights holder industry previously those safe harbour provisions, which enabled many of the world’s top websites to flourish, are seen as a threat to their business models. Rights holders associations have said that the DMCA as it stands right now is too lenient and have lobbied for changes that would better support their business. This has come in the form of 2 recent bills that have dropped in both houses: the PROTECT IP Act (PIPA) in the senate and the Stop Online Piracy Act (SOPA) in the house of reps. Both of these bills have attracted heavy criticism from the technology and investment sectors and it’s easy to see why.
At their core the bills are essentially the same. Both of them look to strengthen the powers that rights holders have in pursuing copyright infringers whilst at the same time weakening the safe harbour provisions that were created under the DMCA. Additionally many of the mechanisms described in the bill are at odds with the way that the Internet is designed to work, breaking many of the ideals that were set out in order to ensure ubiquitous access. There’s also many civil liberty issues at stake here and whilst bill supporters have assured everyone that they don’t impact on them in any way the wording of the bill is vague enough to support both interpretations.
The main issue I and many others take with these bills is the shifting of the burden of proof (and thus responsibility) away from the rights holders and onto the web site owners. The changes SOPA advocates mean that web site administrators will be responsible for identifying copyrighted material and then removing it from their website, lest they fall prey to having their domain seized. Whilst this more than likely won’t be the downfall of the sites that made their fame inside the safe harbours of the DMCA it would have a chilling effect on start-ups looking to innovate in an area that would have anything to do with a rights holder group. Indeed it would be the sites that have limited resources that would be hit the hardest as patrolling for copyright infringement isn’t a fully automated process yet and the burden could be enough to drive them under.
It’s also evident that SOPA was put together rather haphazardly when some of the most known copyrights infringement sites, like The Pirate Bay, are actually immune to it. Indeed many sites that rights holders complain about aren’t covered by SOPA (just by the current laws which, from what I can tell, means they’re not going anywhere) and thus the bill will have little impact on their activities.
You might be wondering why I, an Australian who’s only ever been to the USA once, would care about something like SOPA. Disregarding for the moment the principle argument and the fact that I don’t want to see the USA technology sector die (I could justify my point easily with either) the unfortunate reality is that Australia has a rather liberal free trade agreement with the USA. What this means is that not only do we trade with them free of tariffs and duties but we’re also obliged to comply with their laws which affect trade. SOPA is one such bill and should it pass it’s highly likely that we’d be compelled to either implement a similar law ourselves or simply enforce theirs. Don’t think that would happen? A leaked letter from the American ambassador to Spain warned them that not passing a SOPA like bill would see them put on a trade blacklist effectively ending trade between the two countries. This is just another reason as to why everyone, not just Americans, should oppose SOPA in its current form.
The worst part of all of this is the potential for my site, the one I’ve been blogging on for over 3 years, to come under fire. I link to a whole bunch of different places and simply doing so could open me up to domain seizure, even if it wasn’t me putting the link there. I already have limited time to spend on here and the additional task of playing copyright police would surely have an impact on how often I could post and comment. I don’t want to stop writing and I don’t want people to stop commenting but SOPA has the very real potential to make both those activities untenable.
So what can be done about SOPA and its potential chilling effects on our Internet ecosystem? For starters if you’re an American citizen write your representative and tell them to oppose SOPA. If you’re not then the best you can do is help to raise awareness of this issue, as whilst it’s a big issue in the tech circles, even some of the most versed political pundits were unaware of SOPA’s existence until recently. Past that we just have to hope we’ve made enough of an impression on the USA congress critters so that the bill doesn’t pass, at least in its current form. The hard work of many people has made this a very public issue, but only continued pressure will make it so it won’t damage the Internet and the industries it now supports.
EDIT: It appears that the strong opposition has caused the American congress to shelve SOPA indefinitely. Count that as a win for sanity.