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  • Opinion, Telecommunications - Written by on Tuesday, November 29, 2011 13:09 - 88 Comments

    Self-interest is ruling Australia’s piracy debate

    opinion Over the past few months, I have alternately been appalled, disgusted, saddened and ultimately bored at the degree to which naked self-interest is ruling the ongoing debate about how Australia will deal with the issue of online copyright infringement (Internet piracy).

    Now, there is no doubt that the debate has been a vibrant one. There have been strong opinions from multiple sides. There have been complicated legal, commercial and ethical arguments presented ad nauseum. There have been many speeches made, public discussion papers issued, off the cuff comments thrown into the ether and the overall entertainment factor has been extremely high; worthy, almost, of its own reality show on prime-time TV.

    However, what has been lacking from the debate at its core has been any real consideration for the underlying factors underpinning the growth of Internet piracy and how they might be addressed. Unfortunately, but perhaps predictably, the major players in the debate — the ISP and content industries and the Government — appear to be almost purely engaging in this dialogue out of their own self-interests; nothing more, and nothing less.

    Let’s take last week’s release of a discussion paper by a number of Australia’s major ISPs and representative group, the Communications Alliance, on the issue.

    On the face of it, as many commenters agreed over the weekend, the paper sounds pretty good. It avoids unsavoury approaches to dealing with Internet piracy such as disconnecting users’ broadband connections, includes significant avenues for appeal and independent oversight and works within the boundaries of Australia’s existing law on a predominantly education-based approach to dealing with the issue. However, when you dig a bit deeper into the rationale underpinning the paper, it becomes clear it has broader aims.

    Ask yourself: What does Australia’s ISP industry really think about the issue of Internet piracy? Well, the answer to this question is clear: It wants the issue to go away. Australia’s ISPs want their users to continue to funnel money into their revenue trough for broadband connections with big quotas, and they don’t want to be on the receiving end of lawsuits such as AFACT’s action against iiNet while they’re doing it. Australia’s ISPs primarily see the issue of online copyright infringement as being one between content producers and content consumers; they want no part of the whole shebang.

    The discussion paper released last week reflects this belief. It positions ISPs as outside the cycle of online copyright infringement by having them passively pass on educational and warning notices to users whose activities will in turn be tracked by the content industry; then, when users don’t listen, the ISPs again step out of the way and pass their details back the other way. There’s also a limiting factor on how many notices they’ll pass on. It’s all quite neat and clean — and predictable.

    The response from the content industry (film, TV, video game and music studios and distributors) has also been predictable.

    Ask yourself: What does the content industry think about the issue of Internet piracy? Well, the answer to this question is also clear: It wants to hold onto existing business models. The content industry wants its consumers to continue to funnel money into its revenue trough, forking out for pay television, DVDs, sitting through ever-increasing amounts of advertisements on free to air TV, buying video games at full prices, buying whole albums of music and more. The content industry has a whole superstructure set up which has been custom-designed to part you from your money, and it doesn’t want to migrate to a new system.

    Hence, the content industry primarily sees the issue of online copyright infringement as being one between users and ISPs. They can’t control what users download, but ISPs can, so they want ISPs to take responsibility for undercutting their existing business models. The content industry’s response to the ISPs’ discussion paper released last week reflects this belief. When the Australian Content Industry Group’s Vanessa Hutley says the proposal “falls short”, she means that there’s no responsibility in the ISPs’ model which would require them to take any enforcement action against their users.

    Then there’s the Government.

    Governments are a complex beast. Beset by a thousand different competing political and bureaucratic demands, Ministers such as Federal Attorney-General Robert McClelland are positioned at the heart of a huge spider web with a thousand different cords pulling on them simultaneously.

    Consequently, they don’t pay attention to industry lobby groups such as the Internet Industry Association, Communications Alliance, Australian Information Industry Association, Australian Content Industry Group, Interactive Games & Entertainment Association and so on unless there is clearly an issue which the industry can’t resolve itself.

    When this happens — as it clearly has in the case of online copyright infringement — the Government will normally order a public enquiry to get all sides of the story, and try to get the warring sides to sit down around a table to negotiate under its steely gaze. This is precisely what has occurred in this case as well. Closed door discussions about Internet piracy are being held by the Attorney-General’s Department, and a number of public consultations are under way about the issue of the Internet in general.

    The Government primarily sees the issue of online copyright infringement as being one between ISPs and content owners. They want these two industries to sit down and work out the issue themselves. If this ultimately fails, the Government will be forced to devote resources to legislating on the matter — something which it wants to avoid.

    Now, have you noticed something about all of these approaches? In all three cases, the prime actors (the ISPs, the content industry and the government) have avoided taking any personal responsibility for the issue. None of the major three sides of Australia’s Internet piracy debate fundamentally believe that the issue is theirs to resolve. They want someone else to do it for them.

    What this has meant for the debate is that it has constantly gone around in circles, with each side of this odious tri-pointed star constantly evading responsibility and passing the buck. In addition, they have each avoided discussing the real issues underlying Internet piracy.

    Now, there are two further parties in the debate which have remained largely silent on the issue of Internet piracy so far: Those who actually create the content — rather than distribute it — and those who consume it. I’m speaking, of course, about artists and the general public.

    I was struck recently by a comment which Greens Senator and Communications Spokesperson Scott Ludlam made on this issue in a post on Delimiter. Ludlam wrote:

    “This is a complex and opaque clash of commercial self-interest, with old media conglomerates seeking to retain their incumbency in a world which doesn’t need them as much as it used to. Amazing how little we hear from the artists and creative people themselves about how they’d like to be paid for their work.”

    That’s right — real artists! What a shocking concept!

    As Ludlam rightly points out, it is not film and TV directors, producers or actors, musicians, video game development houses or any other form of artist calling for the issue of Internet piracy to be resolved. These people — artists — do not really care about the issue. Their main concern is that they are allowed to produce their art without gross commercial interference, and that art gets distributed to consumers in a way which allows consumers to get access to it and at a reasonable enough rate of return to allow them to continue making it and even profit a little.

    Art has other aims than just profit, although profit is usually mixed in there somewhere. Strange to hear this said out loud, isn’t it?

    It is a similar situation with the general public. All Joe Citizen wants is to be able to get whatever content they want, at the same time as everyone else, on whatever device they want to be able to view it on, and at a reasonable price that they can afford to pay. Sounds pretty simple, doesn’t it? The average Australian couldn’t give two hoots about content industry groups, record labels, film and TV distribution networks, television stations (pay TV or otherwise) or video game retailers. What they want is the content, plain and simple.

    I was struck by a comment by ABC managing director Mark Scott, who said (as reported by Mumbrella) in a recent speech that the ABC’s iView platform had demonstrated that there is a strong and growing online audience for “great content, well-curated and delivered in an accessible format”. “Our research suggests that when audiences discover iView, they love it — they use it, they keep coming back to it,” Scott added.

    Precisely. When the barriers to consuming content are taken away (as they have been on the ABC’s stellar iView app), content consumption explodes. I personally use iView almost every day — on my PC, on my media centre, on my laptop, on my iPad, on my iPhone — anywhere. Sometimes the content isn’t great, but it’s so readily available that I consume it anyway.

    Australia’s love affair with piracy is not an effort to gyp content creators of their rightful remuneration for that content — it’s a simple attempt to get at content which is too hard to consume otherwise. Once again, audiences want to be able to get whatever content they want, at the same time as everyone else, on whatever device they want to be able to view it on, and at a reasonable price.

    Now the thing to understand about both artists and consumers is that they are absolutely the key stakeholders in this debate — everyone else are just middlemen. In addition, they don’t have many linkages with the other three groups who are driving the debate.

    Content consumers primarily see their main relationship as being with artists directly — the film buff who follows a director’s career, the music fan who buys all of a band’s albums, the Gears of War fan who follows every comment Cliffy B makes in public. And on the flipside, the artists see their main relationship as being with their fans — talking to them, producing content for them, performing for them. Neither places ISPs, content industry groups or the Government as stakeholders of high importance in the way they consume content.

    And yet it is these middlemen who are driving the debate about online copyright infringement in Australia, who are negotiating behind closed doors on the issue, suing each other in court, and threatening to legislate about it. For self-interested reasons.

    When artists and consumers themselves get involved in the debate, a remarkable thing tends to happen: Self-interest largely disappears from the picture. Great art is never created from self-interest. It can only be created when an artist is driven by their creative impulse, and applies discipline to develop their talents. Great art is never consumed from a sense of self-advancement. It is consumed with wonder, for entertainment, to take oneself away from our normal lives. The commercial agenda is present but rarely the most important factor — it is usually the middlemen who tend to bring it into the picture — not the artists, nor the consumers of that art.

    Other things happen as well, when artists and consumers take the online piracy debate back into their own hands. Video game developers create their own publishing platforms which users prefer to piracy. Artists call for their fans to pirate their albums rather than buy them from greedy music labels — and then start publishing them online themselves, without the assistance of intermediaries. Internet video platforms arise to stream content when, where and how consumers want. And more. A direct connection is made between artists and consumers without middlemen.

    Now, I’m not saying every middleman in Australia’s online piracy debate is purely motivated by self-interest. Some ISP leaders, like iiNet’s Michael Malone and Internode’s Simon Hackett, also have altruistic motives and do care about their customers. And the same can be said of some figures within the Government and content industries.

    But what I am saying is that we are letting middlemen rule a debate which should be rightly ruled by Australian consumers and artists themselves. Let’s set self-interest aside from the issue of online copyright infringement and ask consumers and artists what they want. Now that would be the real definition of an “industry solution”.


    Note: To show that I am serious about my comments in this article, I’m licensing this article as Creative Commons (no derivatives or commercial uses). This does not include the images used in the article, on which I do not own the copyright. Please replicate this article as you see fit under these terms. Content production is not always about making money.

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    1. Dave
      Posted 29/11/2011 at 1:39 pm | Permalink |

      http://www.youtube.com/watch?v=QhTiJEYqqY8

      You’re so right… in a digital world, do we really need publishers and record labels?

      • Posted 30/11/2011 at 4:24 pm | Permalink |

        This is the entire problem. We don’t.

        In today’s online age, publishers are unnecessary, and are nothing but greedy leeches. They KNOW their time is up, and they’re trying desperately to hold onto their cash cows while screaming YOU NEED ME DAMNIT!! when the reality is the content creators no longer need them, and the consumer couldn’t be happier if they (the publishers) simply went belly up.

        So rather than come to the negotiating table or try to find new ways to deliver content while remaining in a meaningful role as a middleman… the middleman instead attempts to twist laws and regulations to work for their own self-interests… and then they have the nerve to cry foul when both sides rebel against them.

        The sooner we get rid of the greedy middlemen, the better.

    2. Andrew
      Posted 29/11/2011 at 1:43 pm | Permalink |

      Just encrypt torrent traffic problem solved, at least for the consumer that is. http://torrentfreak.com/how-to-encrypt-BitTorrent-traffic/

      • Dave
        Posted 29/11/2011 at 1:57 pm | Permalink |

        I think Renai’s point is that the need for illegal torrents is due to the middle men clinging to a dying business model and not embracing the brave new world we live in ;)

        • Posted 29/11/2011 at 2:36 pm | Permalink |

          I would say they’re still required, for now, but they should not be the locus of the debate.

          • Glenn
            Posted 29/11/2011 at 3:06 pm | Permalink |

            I think free to air TV funded by commercials is very suitable for live events, i cant see that changing.

            For pre-recorded media the internet changes everything, it says a lot about the strength of the cartel that they have been able to hold of for so long.

            Capitalism supposedly improves market efficiency by encouraging business to develop better ways of delivering their products and services. Its such a bad thing for all of society that the media cartels are allowed to hamstring that process. If only there was an equivalent of the ACCC at the UN, instead all we get is the WTO, nobody is looking to protect consumer interests at the international level.

            But it is good to see some broadcasters embracing new technology, for example Sanctuary and Star Wars: The Clone Wars can be legally downloaded via ABC’s iView, no piracy required.

            • Adam
              Posted 29/11/2011 at 3:50 pm | Permalink |

              As with Renai, I use iView an awful lot because it’s easy, it’s reliable and it’s right in front of me (I have a Bravia television). I also buy iPhone apps for the same reason. If all film and television were that quick and easy, most people wouldn’t persist with difficult, unreliable alternatives.

              Content companies have been trying their hardest to get in our way since DVD region coding (as per Clinton’s comment below). Mob rule is the direct consequence. Sadly, learning from mistakes does not factor into self-interest.

              • Posted 29/11/2011 at 4:06 pm | Permalink |

                Often I wish they’d add an option into iView to pay for stuff. New US TV series hits iView, $3 per episode, my credit card is already entered. Bing! I just bought five episodes. Too easy.

                • Adam
                  Posted 29/11/2011 at 4:25 pm | Permalink |

                  That would work exceptionally well. It would solve the current problem of starting to watch a series (say, The Slap), stopping for a few weeks and finding that it has expired.

                  The sole remaining hurdle, then, would be to guarantee that the purchase is available permanently, or at least in a consistent rental window.

                • Nich
                  Posted 29/11/2011 at 7:18 pm | Permalink |

                  I believe there are some restrictions, but isn’t that what itunes offers (if you’re in the US, anyway)?

                  • Murray
                    Posted 30/11/2011 at 12:40 am | Permalink |

                    In the case of iTunes, to use it you have to have a streaming device to your TV which is the “apple tv”. This is another product you have to buy to use the service where as as mentioned earlier, someone had iView on their Bravia TV – no extra product required.

                • Sam
                  Posted 03/12/2011 at 4:49 am | Permalink |

                  My problem is I couldn’t afford $3 an episode with the amount of television I watch.

                  I’m on a disability pension and spend a lot of time watching television. I have free time because I don’t work. However as a result I don’t have much money.

                  Those who work less have more time to consume content and less money to afford it and vice versa.

                  I tend to buy DVD sets of my favourite series such as Star Trek however I always wait till the price drops to an affordable amount. When the Star Trek TNG sets first came out they were $180 per season. Now I can get them four about $40 a season.

                  Content needs to be affordable. I’ll grant $3 an episode is alright as a one off expense but not as a recurring one. There’d need to be some sort of subscription plan where for $50 a month you can get 100 episodes or something like that in my view. In fact if you’re paying for it you should get it to keep I reckon. Download it to your computer and watch it as many times as you like.

                  I sometimes think the middle ground solution to some forms of content piracy ie. music and tv shows (not movies or books) is to say the 1st viewing is free and if you want to view it again you have to buy it. There are so many tv shows I would only ever watch once and never want to watch again and if I had to pay for them wouldn’t want to pay more than 10c an episode or would ultimately end up not watching them at all if there was no alternative.

      • Andrew
        Posted 29/11/2011 at 3:04 pm | Permalink |

        If the studios would start releasing content globally at the same time we wouldn’t be having this debate.

        • Clinton
          Posted 29/11/2011 at 3:11 pm | Permalink |

          in addition to not releasing content globally at the same time, i think their decision to regionalize the dvd and blue ray markets is a big contributor to illegal downloading of movies as well.

          if someone wants to actually buy a movie and they can’t because it’s not been released in their country, they would then attempt to buy it from an overseas retailer.
          but of course, if that retailer is not in the same dvd/BD region as them they can’t.

          so what do they do next?

          they just go and download it illegally and skip all of the regional controls anyway.

          • Adam
            Posted 29/11/2011 at 3:40 pm | Permalink |

            That’s a really, really important point. My personal dissatisfaction with the content industries was first triggered by DVD region coding. It wasn’t simply an attempt to control duplication, it was companies artificially standing between me and the content that I was legally allowed to buy.

            I think a lot of people’s attitudes started to shift at that point, especially those who didn’t know about region coding until their new purchase refused to work.

          • Ray
            Posted 30/11/2011 at 9:11 am | Permalink |

            I’ve got a few movies i’ve downloaded off the net, why did i download them, because they aren’t available for sale here in Australia. Do i consider it piracy or a lost sale to the movie industry, no, why, because a lost sale suggests that it was available for purchase here in Australia.

            Pokemon Movies #6 (Jirachi Wishmaker) and #7 (Destiny Deoxys) were released to the US market back around 2006 i believe and 2007 to the UK market, but neither were ever released to the Aussie market, it’s only stealing if you can legitimately buy it here in Australia as far as i am concerned.

      • Posted 30/11/2011 at 12:19 am | Permalink |

        Encrypting your traffic only hides it from the ISP though, your IP still appears in the tracker which is what is being used by the industry to track you down.

        As most ISPs don’t block or even slow bit torrent traffic down encrypting the traffic would effectively achieve nothing.

    3. Brad
      Posted 29/11/2011 at 1:57 pm | Permalink |

      Brilliant article Renai, very insightful.

      • Posted 29/11/2011 at 2:37 pm | Permalink |

        Cheers, much appreciated! Took me a while to think this through and write it :)

    4. Clinton
      Posted 29/11/2011 at 2:10 pm | Permalink |

      a brilliant article.
      +1′d and shared on G+.

    5. Adam
      Posted 29/11/2011 at 2:12 pm | Permalink |

      This article is perfect, but I would go so far as to say that everything the content industry says and does is aimed squarely at its direct customers – in this case, broadcasters and advertisers. The film and television sectors only need to convince those people that every effort is being made to sustain the current models; they don’t necessarily need to *do* anything unless profits drop convincingly across the board (which to my knowledge hasn’t happened).

      Music was easier to ‘fix’ because a huge portion of the income was already derived from direct sales. Because film revenue comes mostly from cinema attendance, pay television and home rentals, and television revenue comes mainly from subscription- and advertising-based broadcasts, a transition to an iTunes-style model of available, affordable content on tap, while no doubt profitable and highly successful, would sidestep all the existing stakeholders.

      • Posted 29/11/2011 at 2:41 pm | Permalink |

        You’re right — music was easier to fix because it already had a direct sales model. Same thing with the video game industry.

        Compared with revenues from online video, so far the film and TV studios would be making much, much more from the cinema and TV distribution channels. However, I would argue it’s actually not a zero sum game; people who are not watching TV today would actually pay to download content if they could. Sure, the TV stations and cinemas will lose some audience – but that revenue was disappearing anyway due to things like BitTorrent, and in any case, it doesn’t matter; ultimately mass broadcast is not the future of entertainment, and the content industries need to accept that.

        I think everyone is tired of them locking away their content.

        • Adam
          Posted 29/11/2011 at 3:10 pm | Permalink |

          Yeah. They’re all hell-bent on protecting their decaying industries rather than seeing the huge opportunity that’s right in front of them.

          I think it all comes down to the type of knee-jerk strategy we see from all large companies with impatient shareholders – anxiously responding to the short term while completely neglecting the long term. This type of behaviour is plain to see in Australian commercial television, with 7 and 9 in particular jumping at shadows for several years now (ironically, that jumpiness feeds the consumer dissatisfaction which has boosted the downloading that they’re now desperate to stop).

      • Posted 30/11/2011 at 10:08 pm | Permalink |

        > music is ‘fixed’.

        I’m not exactly sure how music has been ‘fixed’. Global sales of music is in decline (down 30% in 2010 from 2004), despite the growth of online revenue (which is now slowing). The number of employed musicians (in the US) is down 17% over 1999-2009 (US govt stat).

        Seems like the entire globe is listening to less music no?

        On a side note, whilst iTunes is now the dominant single distributor of music globally, packaged media is still the dominant revenue stream for studios (in around a 60-40 split). On a global scale, the stats show people still prefer CD.

        • Posted 30/11/2011 at 11:11 pm | Permalink |

          I would say the globe is listening to more better music, and less mass-produced record label-driven crap.

          But that’s just what my gut tells me.

    6. Posted 29/11/2011 at 3:11 pm | Permalink |

      Thanks for your much needed article – though I’m not sure artists and the general public i.e. the 99% are being silent – rather their opinions on this issue are being sidelined – unless of course their point of view happens to co-incide with the 1% i.e. big record and media companies!

      Speaking as both a creator and member of the general public, I personally don’t “consume” art, music, cinema, books etc.

      BTW, have you seen RiP: A Remix Manifesto? ripremix.com

      Walt Disney was a mash up artist!

    7. toshP300
      Posted 29/11/2011 at 7:03 pm | Permalink |

      *As Ludlam rightly points out, it is not film and TV directors, producers or actors, musicians, video game development houses or any other form of artist calling for the issue of Internet piracy to be resolved. These people — artists — do not really care about the issue.*

      you make the erroneous assumption that movie studios, music labels and other media production houses are merely “middlemen” and completely dispensable. for example, you do realise that a lot of Hollywood movies (esp. “blockbusters”) have budgets that run into hundreds of millions? there’s no way in hell a small director / producer team could ever make these movies without the willingness of movie studios to take a big gamble on their creative concept and bankroll the production.

      by risking bucketloads of cash on these movies, the movie studios are THE key stakeholder (and not just some insignificant middleman). they have every right to protect the value of the “asset” they have invested in. also, a lot of big name directors and producers such as Steven Spielberg, David Geffen, Jeffrey Katzenberg, Jerry Bruickheimer, Aaron Spelling, etc, wear both hats, i.e. they’re both the “artist” and the “middleman” (to use your terminology), as they often have substantial personal stakes in the “media studios” that produce the work that is being pirated. why do you think these guys are all Forbes billionaires? so, this distinction between “artist” and “middleman” you try to make is artificial.

      also, while established music acts like Elvis Costello that already have an international fan base, awareness, music brand, etc, may be able to circumvent the music labels and market their own music through a personal online platform, unknown or obscure musical acts still need the financial and technical support of music labels to define their audience, devise a marketing strategy, produce their albums, orchestrate radio and TV exposure or in general, underwrite all the various marketing and production costs.

      sure, if you’re already a super-rich superstar like U2, Coldplay, Black-eyed Peas with an established global fan base and millions in the bank account, you may well be able to bypass the “services” of the music labels and personally underwrite the production of your future albums and concerts, but what about the up and coming acts with zero capital and zero industry nous? would Justin Bieber have been able to “monetise” his Youtube fame without the support of a music label?

      *Their main concern is that they are allowed to produce their art without gross commercial interference, and that art gets distributed to consumers in a way which allows consumers to get access to it and at a reasonable enough rate of return to allow them to continue making it and even profit a little.*

      there are thousands of film producers and directors in Hollywood. your generalisation of their motives and expectations from being involved in movie-making is completely unsubstantiated and speculative. while it’s true that independent film-makers like Woody Allen, Hal Hartley and David Lynch may well be 100% motivated by “art” (and not money) in pursuit of their creative works (since their films make very little money and they often refuse offers from Hollywood studios to direct big budget, commercial movies), a significant proportion of the mainstream producers and directors operating within the Hollywood studio system are clearly motivated as much by financial or commercial success of their films, as they are by “artistic values”. have you seen the ostentatious (almost to an obscene degree) Hollywood estates that big name directors and producers like Roland Emmerich or (the late) Aaron Spelling reside in? they are hardly modest, frugal bohemians purely concerned with “art”.

      *Art has other aims than just profit, although profit is usually mixed in there somewhere. Strange to hear this said out loud, isn’t it?*

      well, it depends on what you define as art. how many people consider movies that star actors such as Will Smith, Eddie Murphy or Sylvester Stallone as “art” in a pure sense? sure, it’s a creative work. also, bear in mind, most of these Hollywood movies that are the common victim of video piracy have their scripts carefully screened by studio executives for audience reception and the casting of actors is often subject to the veto of powerful studio executives concerned about the movie’s drawing power. in other words, these movies were produced with “profit” firmly in mind as the key objective! quite simply, the primary objective in financing these movies in the first place is to exploit their commercial potential and make money – there is zero ambiguity about this!

      *The average Australian couldn’t give two hoots about content industry groups, record labels, film and TV distribution networks, television stations (pay TV or otherwise) or video game retailers. What they want is the content, plain and simple.*

      what you really mean to say is that the average pirate couldn’t give a hoot about the ethics revolving around copyright infringement. what they want is selfish access to desirable commodities at the lowest price possible – in this regard, you can’t beat Channel Bittorrent at the price of $0.

      *Precisely. When the barriers to consuming content are taken away (as they have been on the ABC’s stellar iView app), content consumption explodes.*

      the only thing iView proves is that when you lower the price to “zero” (be it FTA TV online or Channel Bittorrent), consumers will always lap it up.

      *Australia’s love affair with piracy is not an effort to gyp content creators of their rightful remuneration for that content — it’s a simple attempt to get at content which is too hard to consume otherwise. Once again, audiences want to be able to get whatever content they want, at the same time as everyone else, on whatever device they want to be able to view it on, and at a reasonable price.*

      okay, so we have always been far behind the States in terms of access to the latest content. now, Americans always get the latest TV shows and movies first before everyone else (TICK). they also have access to Netflix (TICK). here’s where the Aussie pirate’s logic fails: why is piracy still a problem in the US?

      *Internet video platforms arise to stream content when, where and how consumers want. And more. A direct connection is made between artists and consumers without middlemen.*

      err…. Netflix IS a “middleman” (to use your terminology). in fact, they are a pure middleman who passively acquires access to content from content producers and monetises it via subscription fees from online viewers. in contrast, movie studios have a direct stake in the movies they produce because they bankroll the production costs (not to mention, studio executives actively shape the creative product by demanding script re-writes, re-cuts following test screenings, etc). they also perform an internal “middleman” role to the extent that they also “distribute” and market the movies to cinema chains globally. i suppose you could say they are vertically-integrated. ;)

      • Posted 29/11/2011 at 7:30 pm | Permalink |

        Hehe Tosh you devil’s advocate. Great post! Will reply later when I have a chunk more time.

      • Posted 30/11/2011 at 12:04 am | Permalink |

        Hardly a devil’s advocate – nice to see some sanity injected into this debate. +1

      • Adam
        Posted 30/11/2011 at 7:12 am | Permalink |

        *what you really mean to say is that the average pirate couldn’t give a hoot about the ethics revolving around copyright infringement. what they want is selfish access to desirable commodities at the lowest price possible – in this regard, you can’t beat Channel Bittorrent at the price of $0.*

        Renai didn’t mean to say that at all. He actually said consumers are concerned about content, not the bickering of various industry groups.

        It’s disappointing to see an argument made by putting words into the mouth of your source.

        • toshP300
          Posted 30/11/2011 at 10:05 am | Permalink |

          this is what Renai said:

          *The average Australian couldn’t give two hoots about content industry groups, record labels, film and TV distribution networks, television stations (pay TV or otherwise) or video game retailers. What they want is
          the content, plain and simple.*

          the above statement can be read as follows:

          “the average Australian doesn’t care about the stakeholders or content owners/licensees (i.e. “content industry groups”, “record labels”, “TV stations”, etc), their only concern is having access to the content…”

          all i did was follow the statement to its natural conclusion (or flesh out its hidden subtext):

          “the average Australian pirate is only concerned about having access to the content, even if it means engaging in copyright infringement…”

          now, why do Aussie pirates willingly engage in copyright infringment? obviously:

          “….because they don’t care about the ethics revolving around copyright infringement.”

          what’s so controversial about my commentary?

          • Adam
            Posted 30/11/2011 at 10:57 am | Permalink |

            I’m not getting into an argument about semantics, but I will say that asserting the motives of ‘the average Australian pirate’ is fraught with peril if you don’t have actual statistics to back it up. That fact feeds into the point Renai made in this very article – that all the parties are acting out of self-interest.

            • toshP300
              Posted 30/11/2011 at 12:04 pm | Permalink |

              *asserting the motives of ‘the average Australian pirate’ is fraught with peril if you don’t have actual statistics to back it up. *

              what peril? why do i need statistics to back up a commonsense assertion that people who engage in piracy obviously are totally unconcerned about the ethics of copyright infringement? there are surveys reported by TorrentFreak which demonstrate that.

              *That fact feeds into the point Renai made in this very article – that all the parties are acting out of self-interest.*

              oh, and people who engage in filesharing and hoarding large quantities of pirated material aren’t doing it out of self-interest? so, everytime you launch Bittorrent, you’re the world’s greatest altruist? do you download movies and software that you don’t personally want just so you can seed and help distribute them to other P2P users?

              this attempt to make a distinction between “artist” and “middleman” is very naive and completely fictitious. the entertainment industry is a highly complex industry hallmarked by extensive collaboration by various parties who bring different talents, skills and assets to the table and collaborate in a capital intensive process to produce a marketable product.

              there’s no distinction between “artist” and “middleman” because a lot of successful actors/directors/producers own their own production houses or film studios. how do you think Mel Gibson accumulated a billion dollar net worth? in the music industry, successful musicians pass on their knowledge and industry nous to the new generation of emerging artists by nurturing them under their own start-up recording labels (e.g. Dr Dre’s mentoring of Eminem under the Aftermath label).

              • Adam
                Posted 30/11/2011 at 12:21 pm | Permalink |

                *why do i need statistics to back up a commonsense assertion that people who engage in piracy obviously are totally unconcerned about the ethics of copyright infringement?*

                You just answered your own question. Without statistics, you are asserting an opinion. Every self-interested party in Renai’s piece does exactly that, to suit their particular agenda.

                *oh, and people who engage in filesharing and hoarding large quantities of pirated material aren’t doing it out of self-interest? so, everytime you launch Bittorrent, you’re the world’s greatest altruist?*

                That’s not even close to what I said. I’m not defending things I didn’t say.

                • toshP300
                  Posted 30/11/2011 at 12:45 pm | Permalink |

                  http://torrentfreak.com/more-than-25-million-americans-pirate-movies/

                  “The study found that users basically don’t believe or care that movie studios are losing money when someone illegally downloads a movie. “

                  • Clinton
                    Posted 30/11/2011 at 1:06 pm | Permalink |

                    how does that study relate to australians though?

                    is there a similar study of australians who download illegally and their reasons for doing so?

                    • toshP300
                      Posted 30/11/2011 at 1:23 pm | Permalink |

                      so, Aussie pirates who willingly engage in piracy are constantly tortured by their internal conscience over the ethics of copyright infringement, but manage to suppress their feelings of guilt to a sufficient degree with the help of anti-depressants to allow them to continue enjoying the fruits of their piracy…

                      gimme a break…

                      • Clinton
                        Posted 30/11/2011 at 1:54 pm | Permalink |

                        what?

                        all i asked was how a study of american internet users relates to australian internet users.

                        it makes sense to me that their reasons for illegally downloading would be different to those in australia primarily because they are located in the country that outputs most of the content being illegally downloaded and it is much more readily available via the regular (legal) distribution channels, unlike in australia.

                      • Adam
                        Posted 30/11/2011 at 2:09 pm | Permalink |

                        toshP300: We’re responding to the article and discussing the arguments put forth. If you want to attack pirates, go elsewhere.

                        Clinton: Absolutely. A key driver for Australians turning to Channel BT is the glacial rollout of US and UK television here. That factor would barely rate a mention in the US.

                      • toshP300
                        Posted 30/11/2011 at 2:16 pm | Permalink |

                        you can produce a zillion reasons for engaging in piracy, but none of those reasons change the fact that copyright infringement is taking place. also, unless you’re completely ignorant of the concept of “copyright law”, by continuing to engage in piracy nonetheless, you’re obviously unconcerned about the ethics of copyright infringement (otherwise, you’d stop pirating).

                        i don’t need statistics or Australian studies to back up that simple, commonsense assertion.

                      • toshP300
                        Posted 30/11/2011 at 2:33 pm | Permalink |

                        @Adam

                        *toshP300: We’re responding to the article and discussing the arguments put forth. If you want to attack pirates, go elsewhere.*

                        and my extensive demolition of the false distinction between “artists” and “middlemen” isn’t responding to the article?

                        *Clinton: Absolutely. A key driver for Australians turning to Channel BT is the glacial rollout of US and UK television here. That factor would barely rate a mention in the US.*

                        unlike TV shows, the release of software and games is pretty much internationally synchronised (i.e. not a six month or one year delay). does that mean piracy of software and games on Aussie networks is disproportionately scarce relative to overseas networks? (do you have statistics to back this up?)

    8. TooManySecrets
      Posted 29/11/2011 at 8:16 pm | Permalink |

      Definitely a deep thinker. What a great article.

      Thank you.

    9. Sarah
      Posted 29/11/2011 at 10:03 pm | Permalink |

      A real artist, Elvis costello did speak, he said ” Steal this album”

      • Posted 29/11/2011 at 10:28 pm | Permalink |

        heh yup; I linked to an article about that :)

    10. Bruce
      Posted 29/11/2011 at 11:21 pm | Permalink |

      I believe you have missed two factors in your analysis. The governments existing role in filtering content through classification and censorship and the effect this has on restricting the free flow of authorised content into the country. The government is not just a passive player but has a vested financial and social engineering interest.

      The long term goal of the content industries may also not be piracy but control. The ongoing theft of resources from the public domain by companies demanding the extension of copyright is not about piracy but about ensuring that all future artists must deal with only authrorised distribution channel or risk a copyright attack with an arsenal of ~150 years of human creativity.

      Piracy in this debate is a red herring which is why nothing sensible can ever be agreed between the parties. This debate should be seen in the light of robber barons and government indulgences. Consumers need to be standing up not for their right to access current content but for their right to enjoy the fruits of their creative output in the future – not for lifetime plus however many years the content industries are demanding but for about 20 years. Long enough to ensure they can earn an income from their efforts but short enough to ensure they will not be attacked for standing on the shoulders of others, as we all do.

      • /B/LOODY FLIES
        Posted 30/11/2011 at 10:07 am | Permalink |

        this x100

      • SMEmatt
        Posted 30/11/2011 at 11:54 am | Permalink |

        Why is copyright 150years with patents 20years. How is Mickey Mouse more important to society than the light bulb?

        • toshP300
          Posted 30/11/2011 at 3:08 pm | Permalink |

          precisely because the light bulb is more important to society than Mickey Mouse, hence you want to get “patents” into the public domain as soon as possible.

          • John
            Posted 01/12/2011 at 6:35 pm | Permalink |

            Yeah and art should only get to the public when it is probably no longer relevant, and forgotten.

    11. Mitch
      Posted 30/11/2011 at 12:28 am | Permalink |

      Absolutely brilliant article! I’m all for artist’s gaining more control!

    12. Little John
      Posted 30/11/2011 at 9:16 am | Permalink |

      Content, available same time as everyone else reasonably priced and able to be consumed on your choice of device is what people will pay for.

      How do i know?

      A friend of mine, lets call him him Robin Hood previously sold content such as dvd’s he obtained from channel BT. He’s reasonably priced model of $10 per movie saw him in the hay days before channel BT was common knowledge move in excess of 500 movies a month plus additional content (he was lazy and could have sold alot more) – some individual customers had outstanding orders to buy one of ‘every movie’ he got.

      Since channel BT became more widespread he has seen his business virtually disappear as individuals are now empowered to obtain their own content at the cost of a monthly connection.

      I asked him recently did he every speak to his customers or did they pass comment about obtaining the content legally? his response is one content owners, industry should listen to…

      “Every person he sold content to had told him that if the content (lets use DVD’s as that’s what he sold most of) was available to obtain legally in a format they could then choose the device to play it on (without DRM) they would buy everything. They said buying the electronic copy of a movie for $10 was so attractive that they would buy movies they had previously considered not worth the price, when comparing to the $20-$30 range.

      • Posted 30/11/2011 at 10:25 am | Permalink |

        This Robin Hood is exactly the sort of person who should be targeted by the industry, fined and/or jailed.

        Reason being is because there is a vast difference between people distributing the files for free, and those who take those files and sell them for self profit.

        His business model was built on selling stolen goods, that’s not a business model, that’s criminal activity, and if he’s still doing it I hope he gets caught, and I hope he faces maximum penalties, because it’s these sort of people that cause all the problems and give valid reasons for the industry to make claims on lost income (since there is money changing hands but it is going to this individual and not the industry).

        • Little John
          Posted 30/11/2011 at 10:57 am | Permalink |

          Tezz – Your correct (he was caught once and lost alot of computer equipment and money), I didn’t agree with his actions hence my large DVD/Bluray collection taking up half my study… yet every Sunday at computer swap meets in Victoria I see countless Stalls/tables selling pirated material and its the same people year in year out – this is where the majority of damage is being done in my opinion, making material available to even large audience than those obtaining it from channel BT.

          If copyright holders where serious, they along with federal law enforcement would be targeting these people who are selling this pirated material to the masses.

          State police care little for copyright infringement (Is it federal not state law? i’m unsure), I can name several victorian police stations that have active groups of officers swapping movies/tv shows via portable drives.

          • PointZeroOne
            Posted 30/11/2011 at 11:47 am | Permalink |

            federal police

    13. Posted 30/11/2011 at 10:38 am | Permalink |

      Thank you Renai for your article. To you and those who have made comments my input is this. Copyright-related piracy is a survival of the fittest competition between elements. The elements in play include:

      * creative destruction (new ways or technology which take competition to new realms or platforms),
      * law (rights owner copyright versus user fair dealing with copyright),
      * values (these differ by individual, country, industry, perspective and so on),
      * economics (competing models, and hence fortunes won, lost or stagnant)
      * politics (industry lobbies sell policy to politicians who package it to win popularity polls).

      Not recognising there is a play between such forces results in repetitive gesticulation by people, organisations and governments about this or that perspective or angle to the issue.

      Seeking perfection is fruitless. Remember – history does not move in straight lines, on most subjects there are more than two views, watch and respond to the competitive dynamics between the forces or to quote Hamlet: “The plays the thing!”.

    14. Brendan
      Posted 30/11/2011 at 11:39 am | Permalink |

      There will always be an element that seeks to make money from potentially breeching copyright. And it’s that element that is being used (pirate? Arrr, shiver me torrents! I have great ripped CD plunder to hawk at yer swap meets!) as it’s an emotive, easy point scoring resource.

      The reality is, most people, when faced with a suitable alternative, will use the alternative. Sales via Amazon and Apple’s iTunes store pretty much prove that point.

      This is why Apple’s iTunes store has all but saved the recording industry. Because it’s replaced a model that did not adapt, where copyright breech was rife, with a model that has been adapted to suit the ‘timely distribution at a reasonable price”.

      We are at the exact same cross-road from the Motion Picture avenue. Despite tosh’s claims, providers like Amazon and Apple have now established a model that provides content in a timely manner, at a reasonable cost.

      Services like ABC’s iView proves it’s a highly workable avenue, this online content delivery business.

      The reason, fundamentally, that the Industry has fought this, is control. This is why we still have distribution rights (including delayed) region locking and most other forms of constraint. It means the coins all flow through the same pockets.

      Apple’s profits from iTunes are almost obscene. Which shows just how much has been flowing through Industry coffers (and how little makes it to the actor, singer, band, etc) by comparison.

      If the industry wants to protect it’s investments, it needs to adapt to a changing market. Or the market simply goes elsewhere. Copyright has been used as a licence to print money, rather than protect interests; the fact that recording artists and performers are all but sidelined clearly indicates this has always been about money, control; copyright is a simple expedience to this practice.

      The Industry has, ultimately, brought this on themselves.

      • PointZeroOne
        Posted 30/11/2011 at 11:49 am | Permalink |

        I’m wanting to watch Stargate SG-1, this show goes for 10 Seasons.
        Uncle Torrence has it for 150Gb.
        Australian retailers have it for $212 to $350 (some online ones are +postage)
        Amazon UK has it for $130 AUS with free postage.

        I’m really happy to pay the $130 for it from Amazon.

      • Posted 01/12/2011 at 12:02 am | Permalink |

        > Apple’s iTunes store has all but saved the recording industry

        keh? Digital channels provide 30% of global music revenues (IFPI digital music report Jan 2011) . Lets give iTunes all of that – and iTunes is a remarkable achievement, and a big contributor – but saved the industry?

        > We are at the exact same cross-road from the Motion Picture avenue

        We are so far behind that progress in the Motion Picture avenue it’s not even funny.

        > Apple’s profits from iTunes are almost obscene

        Another fantasy – although this one is even more outstanding. Common knowledge recognises Apple make sweet fa off it’s music distribution. Their play is for device sales. This analysis http://www.asymco.com/2010/10/25/visualizing-apples-profitability/ has Apple making a princely 10% operating margin on iTMS (with a chunk of that coming from App sales). That’s even less than what JBHifi make off their DVD sales (which runs at about 12%).

        Lets not have facts get in the way of a good argument!

    15. Juffy
      Posted 30/11/2011 at 12:23 pm | Permalink |

      The danger for distributors is that they have resisted embracing these new distribution channels for so long that they’re in danger of making the alternative the de facto standard.

      iView is a great example – if I want to watch something that was shown on ABC last week, I head for iView. It doesn’t even occur to me to try to torrent it. But if I miss something on commercial TV (assuming it isn’t 18 months behind the original air date, but that’s another story) the default option is to call Mr Torrence and order it online.

      A mate’s 3yo daughter already knows enough to ask her daddy to “torrent this” when she sees a show she likes. The content owners/distributors may have already lost the battle against the first generation of netizens, but they’re in danger of losing our kids too.

    16. Gav
      Posted 30/11/2011 at 12:42 pm | Permalink |

      The problem with online piracy is much the same as online shopping – traditional distributors are failing to adapt to demand for new distribution models that have been brought about by lower barriers to global trade via advances such as more efficient cargo shipping and the Internet.

      The retail and content industries exist in a reality that is no longer true, whereby they can lobby for legislation and regulation to protect their investments without the threat of foreign entrants bypassing them. Technology, since the invention of radio, has been breaking down national borders (e.g. Radio Free Europe vs. Communism) in a way that is much less overt than physical incursions through air, land, and sea domains. In this way, radio-based communications, and now the Internet, are a direct threat to national sovereignty i.e. the quality of having supreme independent authority over a territory, including the power to govern and make law.

      The sheer volume of trade, in goods and data, via freight and the Internet means it is impossible for a border to be fully screened, and thus import channels are opened to those who wish to take advantage of them. Even if the government were to legislate against purchases from Amazon, it could not stop even half of the purchases from entering the country if the packaging lacked the Amazon logo. Likewise, file sharing raises a significant screening issue for traditional protectionist approaches to be effective.

      The companies fighting against these modern threats truly must adapt or die. When they began it was because their creators had a belief that they could operate in a profitable fashion and offer customers something better than what others had. It is a fallacy to believe that people today will not take advantage of further changes in the business environment to drive their own success. In the absence of protectionism, the only options are adaptation or failure.

    17. Codecreeper
      Posted 30/11/2011 at 12:59 pm | Permalink |

      Maybe all sides should start to look why users are downloading the content in the first place? My view is it all goes back to supply and demand ,our Viewing habits on TV. Too long have we endured long commercial breaks in our shows while these stations reap in the money. Viewers look to the internet for information on shows and find new content so what do they do? Download it. Year after year in Australia we program listing the same ,TV shows the same old repeats and cheap US Shows.

      We need to start evolving with the need for new content and stop this insidious region encoding and make these new TV shows and programs available more speedily. Buying DVD’s or renting may be a solution but still we have to wait sometimes up too 12-24 months after they are produced. PayTV operators are just as bad with most of them owning Free to Air TV and using this source to Farm Money for the Pay TV stations.

      I really think the blame game needs to stop and all sides sit down and work to a more viable solution and also the copyright holders need to take more responsibility in allowing more access to the shows produced on US soil.

      • Adam
        Posted 30/11/2011 at 2:20 pm | Permalink |

        The problem with that, though, is that we’re the product. The content industries care as much about what we want as a beef farmer cares about what cows want. They don’t want us breaching business models, they want us to stay quiet and consume.

        • Codecreeper
          Posted 30/11/2011 at 3:20 pm | Permalink |

          Its like a vicious cycle no one is prepared to give and take. What has been offered is the first step ,but the copyright holders are out for blood. Just a pity the actors in US and AUS should try and intervene and tell the media how much these copyright holders make from the Actors earnings. Its like a Pimp selling someone else work but not giving the earnings back to rightful owners.

    18. toshP300
      Posted 30/11/2011 at 3:55 pm | Permalink |

      here’s where i think the real story is:

      the internet has developed fast but is still relatively young. because of the speed of the evolution of the role of the internet in our lives, governments are still trying to understand this “net” phenomenon and work out how to “regulate” it. ISPs, as “gatekeepers” to the net, will end up having a key role in future government regulation. industry stakeholders like AFACT are just trying to accelerate the inevitable process.

      all this is already happening. we already have a Canadian precedence of an ISP deliberately throttling encrypted traffic, BT filtering binaries aggregation websites and various countries implementing 3 strikes rule. i think pro-piracy advocates have downplayed the extent to which ISPs can restrict the activities of users on their network if they actually wanted to. new government regulations may eventually force ISPs to invest in new systems and implement a more circumscribed “net access regime” for subscribers.

      i’m not trying to suggest that net piracy will be completely stamped out. rather, i’m arguing that the major changes on the horizon are not the implosion of movie studios or some fanciful re-invention of how the content industry works, but increased government regulation of the internet on an international scale. it’s still early days in regulatory intervention. so far, we have hardly had any, with development of the net largely driven by industry initiatives with little government oversight. that’s why net piracy has been so successful and has been able to grow so fast.

      i’m not arguing that increased regulation of the “net” should happen or is a good thing. i’m just saying it’s likely to happen and the concerted industry response to dealing with net piracy in collaboration with governments looks like the catalyst for increased government intrusion into net freedom to achieve various objectives (net piracy being one). when you take into account the fact that cyberwarfare will play a huge role in WW3, increased government regulation of the net is inevitable.

      • Dean
        Posted 30/11/2011 at 4:31 pm | Permalink |

        all this is already happening. we already have a Canadian precedence of an ISP deliberately throttling encrypted traffic

        I don’t think I’d call that a “precedence”. That ISP (Rogers) was throttling all encrypted traffic, even https connections to your gmail account, etc. I can’t see that taking off…

      • Brendan
        Posted 30/11/2011 at 5:50 pm | Permalink |

        “ISPs, as “gatekeepers” to the net, will end up having a key role in future government regulation. industry stakeholders like AFACT are just trying to accelerate the inevitable process.”

        ISPs are not gatekeepers, just as a road isn’t a vehicle ‘gatekeeper’. It’s a transport conduit.

        ISPs are, however, taking an active role because they can clearly see what has happened overseas, particularly in Europe and the UK when they do not. Impractical, poorly chosen legislated options that the ISP is then encumbered with.

        They are, in effect, trying to help the Industry find a middle ground. Of course, the Industry isn’t interested in the middle ground. Because that hurts profits.

        “that’s why net piracy has been so successful and has been able to grow so fast.”

        No it isn’t, tosh. The notion of “piracy” has existed since time immemorial. There will always be a section of the community that ingages in it.

        Which has nothing, at all, to do with alternative content distribution which is what is actually happening. And that fits squarely under supply and demand. The Industry seeks to maintain the status quo, whilst the world moves forward.

        It’s not dissimilar to the ‘flat-earth’ movement that even when presented with factual data that proves the world is round, they’ll have none of it; the Industry here is worse simply because greed drives pretty much every effort.

        It’s not that the Industry cannot change. It’s that they refuse to. Which means when the demand is not being supplied, someone else will always fill the void.

        The answer is not to regulate, constrain, increase government involvement or use “guilt by association” as methods to “fix” the problem, when the problem is caused by rights holders maintaining their flat-earth view, enforcing sales models that presume the world hasn’t changed since 1975.

        Tosh, you argue that somehow dealing with all these “pirates” will fix the problem. It won’t. Because the fringe is not the problem. It never has been.

        The “fix” is very simple. Timely content distribution at generally accepted value. Netflix in the US, iTunes store, Amazon to name but a few. iView is a great example of making content available in a timely fashion. People have flocked to it; and that will have reduced copyright violations in the process.

        Will it stop 100%? Of course not. You can’t. But the Rights holders have come to this point because of their own machinations, far more than any external influence.

        • toshP300
          Posted 30/11/2011 at 7:32 pm | Permalink |

          *ISPs are not gatekeepers, just as a road isn’t a vehicle ‘gatekeeper’. It’s a transport conduit.*

          when i say ISPs are the effective “gatekeepers”, i’m not trying to make a normative suggestion about where moral obligation or legal responsibility naturally falls. ISPs are the “gatekeepers” in the sense that they have full control of the networks over which piracy (or digital counterfeiting) happens. imposing obligations on ISPs is the easiest (or most direct way) to restrict activity on the internet.

          for instance, take a look at SOPA. it’s actually not the most draconian means of fighting piracy. SOPA is basically trying to strangulate the individual websites (one-by-one) that facilitate piracy by denying access to ad networks, search engines, payment mechanisms, etc. the obligations imposed on ISPs by the SOPA are actually relatively minor, i.e. of the web-filtering or DNS poisoning variety. (i’m not saying SOPA is a good thing or the measures aren’t circumventable in the long run due to the natural limits of US jurisdiction.)

          the alternative to SOPA is to completely overhaul the consumer interface to the internet in a radical fashion by strictly regulating the service that ISPs provide and forcing them to circumscribe the kinds of activity that can occur over the “net” by inventing new protocols which are easier to inspect and filter or banning outright certain protocols. of course, this will be a “blunt tool” approach and will be devastating to the concept of “net freedom”. also, i’m not suggesting this is going to happen anytime soon. however, when pro-piracy advocates argue that “you can’t stop this” or “you can’t stop that”, they are making an implicit assumption that the consumer interface to the internet won’t change drastically.

          *ISPs are, however, taking an active role because they can clearly see what has happened overseas, particularly in Europe and the UK when they do not. Impractical, poorly chosen legislated options that the ISP is then encumbered with.*

          ISPs basically don’t want to implement anything that will increase their operating costs radically, be it investing in new monitoring systems, court attendances, scheme administration costs, increased legislated compliance rules, etc. it’s all about the bottomline for them (as it should be, they’re a business!) also, in general, anything that affects their business models in a negative fashion is to be avoided at all costs.

          *They are, in effect, trying to help the Industry find a middle ground. Of course, the Industry isn’t interested in the middle ground. Because that hurts profits.*

          there is no middle ground in copyright infringement. net piracy is basically digital counterfeiting and digital counterfeiting is no different to ordinary counterfeiting of Louis Vitton handbags, Dunhill leather belts, etc.

          *The notion of “piracy” has existed since time immemorial. There will always be a section of the community that ingages in it.*

          yes, but “net piracy” is a relatively new phenomenon and the scale and reach of online piracy is completely unprecedented. there’s just no comparison to swapping cassette tapes with your mates or hooking up your VHS recorder to a mate’s and making copies of his VHS tapes. also, it’s not just a tiny section of the community or a “fringe element” that engages in it. current estimates in a TorrentFreak article is 25mln Americans have pirated movies.

          *Tosh, you argue that somehow dealing with all these “pirates” will fix the problem. It won’t. Because the fringe is not the problem. It never has been.*

          i’ve never said that “pirates are bad”, “pirates should be hunted down”, “pirates need to develop a conscience” or even “pirates should stop pirating”, etc. what i find repugnant are attempts to take the higher moral ground vis-a-vis content producers using bullshit arguments when piracy and copyright infringement are clearly illegal activities and have no moral or ethical defence whatsoever.

          you’re not going to starve to death if you can’t watch a certain TV show or movie. you have no “rights” to consume something a content owner doesn’t want to sell to you. you only have “rights” as a consumer, if you’ve already entered into a mutually-agreed commercial transaction with a supplier where the delivered goods are defective, damaged, misleading, failure to fulfill warranties, etc. you don’t establish a legal relationship of rights and obligations just by standing in front of a shop window.

          *The “fix” is very simple. Timely content distribution at generally accepted value. Netflix in the US, iTunes store, Amazon to name but a few.*

          first of all, the relative cost of manufacturing physical copies of multimedia (be it CDs/DVDs/Blurays) vs online delivery is completely trivial relative to the underlying VALUE of the product being sold. piracy advocates are confusing the underlying value of IP content with the “cost of replication” (be it “physical” or “digital”). all other things remaining equal, the value of any good is correlated with scarcity. that’s why Elvis Costello’s 1,500 limited edition special collector’s box package is priced at 200 pounds. by arguing that content producers should make their content available to everyone at low prices, you’re basically saying they should devalue the potential worth of their products. that’s completely irrational. “scarcity” or restricted supply generates value. “exclusivity” generates value. the only people who try to argue that content producers (or infrastructure owners) shouldn’t try to maximise the value of their assets are pirates (or free-riders).

          secondly, the so-called “success” of Netflix or Hulu doesn’t prove anything. both franchises are dependent on access to movie content at affordable prices. right now, the number of Netflix subscribers is still tiny relative to the total population. if the industry starts to experience greater cannibalisation of revenues from traditional distribution channels by Netflix, do you seriously think the movie studios will still be charging Netflix the same rates or prices they are currently getting? there’s no free lunch.

          • Adam
            Posted 01/12/2011 at 8:54 am | Permalink |

            *there is no middle ground in copyright infringement. net piracy is basically digital counterfeiting and digital counterfeiting is no different to ordinary counterfeiting of Louis Vitton handbags, Dunhill leather belts, etc.*

            It’s very different. For a start, it’s replicating data, not setting up factories and teams to build physical copies. Secondly, handbag counterfeiting is always done for profit, whereas net ‘piracy’ is frequently conducted by individuals who have no wish to sell what they download. These are not analogous examples.

            *if the industry starts to experience greater cannibalisation of revenues from traditional distribution channels by Netflix, do you seriously think the movie studios will still be charging Netflix the same rates or prices they are currently getting?*

            I don’t, but it’s not my problem to sort out. The content industry has shown consumers very little regard over time (see my comments above about region coding and the farmer analogy), so I don’t see why we should suddenly lend a sympathetic ear in their hour of need. Does that make me self-interested? Of course it does.

            • toshP300
              Posted 03/12/2011 at 9:35 am | Permalink |

              *It’s very different. For a start, it’s replicating data, not setting up factories and teams to build physical copies.*

              what’s the effective difference? how are content owners any “less hurt” than luxury brands because their IP rights can be more easily infringed by merely sending bits down a pipe as opposed to setting up sweatshops? focus on substance, not form.

              *Secondly, handbag counterfeiting is always done for profit, whereas net ‘piracy’ is frequently conducted by individuals who have no wish to sell what they download.*

              so raping a woman/man (i.e. forcibly taking and enjoying proprietary content without the owner’s consent for your own pleasure) is more morally defensible than pimping out that person?

              *I don’t, but it’s not my problem to sort out…..so I don’t see why we should suddenly lend a sympathetic ear in their hour of need. Does that make me self-interested? Of course it does.*

              pro-piracy advocates are arguing that “Netflix proves that online distribution is viable”. but, it doesn’t. Netflix was initially a mail-order business that decided to offer streaming options. to cut a long story short, in the early days of their foray into streaming, they managed to luck out on one re-distribution deal with Starz (a pay-TV operation) which resold them extremely cheap access to some movies for a fraction of their market value. that deal has now expired and Netflix prices have been going up. more generally, the movie studios are now loudly saying at media conferences that they will start raising prices to Netflix to offset any potential cannibalisation of their traditional revenue streams. Netflix is still very much a fledging operation and not a stable business model – they face many headwinds, everything from cost of content acquisition to future bandwidth scarcity (net neutrality, etc).

              *The content industry has shown consumers very little regard over time (see my comments above about region coding and the farmer analogy)*

              the content industry doesn’t owe you anything. if you buy a DVD and it’s defective, you have a “consumer right” to have the DVD replaced or refunded. you have no “rights” to consume products that content producers do not want to sell to you. also, if you don’t like the products they sell to you (i.e. DRM restrictions), don’t buy it! there is no ethical justification for copyright infringement.

          • EnJaySee
            Posted 01/12/2011 at 4:37 pm | Permalink |

            I’d love to see US Congress pass SOPA and PIPA. If only to watch them strangle domestic innovation and drive it overseas as well as the other unintended consequences of messing with internet infrastructure. It may not happen overnight. In fact it may happen over a decade, but it will kill Silicon Valley.

          • Cheshire Cat
            Posted 03/12/2011 at 11:29 pm | Permalink |

            Tosh there are plenty of moral or ethical defenses to copyright infringement. People have listed plenty but you ignore or toss them all away. Free trade ‘should’ protect us from the region restrictions they attempt to impose upon us but it seems to only work when companies want it to. It has worked before though re: Sony and the playstation modding. Our courts said Sony couldn’t limit their products or determine how we the consumer used their products if they chose to region lock. So region locking is clearly not allowed in this country when challenged in court (or we are allowed to find work arounds) this would therefore hold true for net delivery as well. And if we could get it free from comedy central after its aired in the USA why would we torrent. (the copyright infringement in their view being us viewing it from another country)

            Another morally or ethically acceptable form of copyright infringement is duplication for personal use. Only the law can’t keep up with the technology. So we have a case where it’s ok to copy songs to your iPod from a cd but not from a DVD… This is a stupid outdated law and it is our duty as citizens in my view to break unjust laws.

            Another problem that really gets me annoyed is the fact they try to have it both ways all the time. Either the content is a product just like a lamp or a book or a big Mac and I can do with it what I want (including use it in any device, copy it to any personal device, lend it to a friend etc) or it is a licence and the company is therefore responsible to provide me with a new copy at minimal cost if mine is lost etc (I’m pretty sure that’s the law here) they want it both ways depending on the situation as it suits them though.

            Is torrenting morally or ethically ok… Of course not. But don’t pretend the companies are acting morally or ethically ok either. They flout our laws and the intent of our laws to suit themselves at every turn. When they act fairly I’m sure more average joes will care about copyright infringement. As it stands even blind Freddie can see the system is broken so they don’t care if they break it as well (and torrent)

        • Posted 30/11/2011 at 9:30 pm | Permalink |

          ‘alternative content distribution’

          That’s an interesting euphemism.

          ‘It’s that they refuse to’

          Really? Supplying content to iTMS, Xbox Live, Quickflix streaming, T-box, Bigpond movies, Sony Qriocity, PS3 movies, Fetch TV, Foxtel Box Office all for streaming. And lets not forget in the past Reeltime TV, Au Anytime and TransACT with their early efforts. That’s Australia alone. Then there’s the states with Netflix/Hulu/Ultraviolet, Uk with LoveFilm, Japan’s Wii-Room and who knows what other regional streaming efforts exist around the globe and are currently in development.

          Is that refusing to distribute digitally?

          ‘generally accepted value’

          I love it how this becomes the final word for advocates. You are now the arbiters of a business’ price point, not the business itself.

          • Adam
            Posted 01/12/2011 at 8:50 am | Permalink |

            Region coding and delayed international releases persist. These are artificial barriers. In my view, that’s conclusively a refusal.

          • Brendan
            Posted 02/12/2011 at 8:58 pm | Permalink |

            “That’s an interesting euphemism.”

            No, it’s a point of fact. Copyright is designed to protect the content creator, over time it’s become defacto that content creators no longer hold the rights. They end up with distributors. Whom seem hell bent on protecting their interests and not the interests of the people whom created the content to begin with.

            There’s a problem in the system, that has come to the fore. It’s a shame that all the focus is on the apparently evil consumer, and not how we ended up here in the first place.

            “Is that refusing* to distribute digitally?”

            When it’s region locked (both via media and via internet), restricted to narrow offerings and ploughed together with strict use avenues I have to question what you mean.

            And thanks for lumping every single consumer into the “evil pirate” bin. That’s a very Rights holder centric view, by the way. It’s like calling every muslim a terrorist for simply being a muslim (or arabic, etc). It’s an idiotic statement.

            “I love it how this becomes the final word for advocates.”

            Sorry? What is wrong with expecting a fair price for fair use?

            Do you pay $30 for a big mac and fries? Does it come with a restriction that you can only consume it at a McDonalds franchise. That it must be eaten within 24 hours. That you can only have that Big Mac at specific franchises local to you?

            Of course not. Silly example. And yet we’re expected to believe rights holders are innocent hard done by poor people whom have bread stolen from their table. I might believe an artist telling me that. I find it hard to imagine a Sony BMG exec having that issue.

            By engaging in such bullying tactics, I again state Rights holders have done this to themselves. They’re the supplier.

            They can of course do whatever they want with that content; including making it a non-issue for copyright infringement by making it available in a timely fashion, at a price the market isn’t going to find unpalatable.

            But don’t expect people to have sympathy for moguls whom use Copyright not to protect the creation, but to enforce their cut of the pie, treat their consumer base as filthy thieves and seek to sidestep law in order to expedite their ability to extract revenge.

            Also, do you have something to declare, here?

            • toshP300
              Posted 03/12/2011 at 10:26 am | Permalink |

              *Copyright is designed to protect the content creator, over time it’s become defacto that content creators no longer hold the rights. They end up with distributors.*

              really? so, Michael Jackson (or his estate) no longer holds the rights to all his songs? Paul McCartney no longer holds the rights to his songs? gee, i wonder how Paul McCartney became a billionaire…. you obviously have ZERO understanding of how the music industry works. song publishing rights are temporarily assigned to music publishing companies that manage, administer and market a particular artist’s music catalog with a proportion of royalties being passed onto the artist. in some cases, music publishing companies advance a large sum of money to artists in return for a larger cut of future royalties (a form of mortgage). a lot of successful artists also own their own music publishing companies.

              *Whom seem hell bent on protecting their interests and not the interests of the people whom created the content to begin with.*

              any reduction of future royalty streams due to piracy directly results in a loss of potential royalty income to the artists. by fighting net piracy, music publishing companies are protecting the interests of artists whom they are contractually-bound to represent. these rights assignment contracts between the artists and publishing companies specifically task the companies to ensure the copyright on music catalogs is not infringed upon.

              are you Brendan Malloy?

            • Posted 03/12/2011 at 6:22 pm | Permalink |

              >No, it’s a point of fact .. They end up with distributors.

              As tosh points out – no. IP from copyright is returned to the public domain after (depending on time of release) about 90 odd years (with exceptions).

              >What is wrong with expecting a fair price for fair use?

              Nothing. The problem is free is a mighty compelling price point that makes any other price point seem unreasonable. And when it’s the individual who regulates their own choice to pirate (i.e. there is no external policing), the justification comes very quickly that at some point for some reason the commercial offering is ‘unpalatable’.

              > don’t expect people to have sympathy

              I don’t. What I am trying to do is deconstruct some of the myths around piracy. The law recognises no one has the right to infringe IP. ISP’s recognise this as well. But no, it seems you actually believe you have the right because the content industry has failed to reach you with a business model that you approve of. Well fine, but no, that doesn’t give you the right, and we end up with a bunch of justifications with extremely bad pseudo-analysis of an industry you’ve got no idea about.

              > declare

              Apart from my full name which gives a clear statement of who I am? What else would you like me to declare?

              • Brendan
                Posted 03/12/2011 at 11:25 pm | Permalink |

                “The problem is free is a mighty compelling price point that makes any other price point seem unreasonable. And when it’s the individual who regulates their own choice to pirate (i.e. there is no external policing), the justification comes very quickly that at some point for some reason the commercial offering is ‘unpalatable’.

                I have Foxtel, FetchTV, and a whole bunch of DVD’s, Blu-rays and a ton of music purchased from iTunes. I’m happy to pay where I can. And I do. A lot. So I support the industry. But that’s okay. you can label everyone as a dirty thief to maintain your point. Make assumptions. That’s fine, right?

                Sometimes, though I *cannot* because it’s not actually available here. At all. So my point has always been with respect to the broken state of release. It’s hard to pay for something that won’t release here for months after the US; sure I can break potentially other laws around setting up a US Credit carda and use a VPN to access content in the US, but really, isn’t that a little extreme when content could simply be sold, on time?

                I’m holding up a credit card. See this? Useless to me. I’m happy to pay for content. So are most people. Why is it wrong to expect the content and rights holders to perhaps embrace the notion of timely release, worldwide?

                It wouldn’t be to protect the lucrative staggered release and “exclusive” rights market, would it? Perish the thought.

                This is the danger of “lumping” everyone into the evil pirate camp. Despite the debate and discussion around movies and tv shows, half the time australians cannot be a part of that. Even if they want to do the right thing.

                The world isn’t insular. It’s very actively socialising large parts of everyday life. Including entertainment. And that’s where a lot of the demand comes from. Not from people seeking to steal food from the table, but simply to be involved in the discussion.

                This isn’t 1984. The world has moved on. You cannot expect the world to stand still simply because rights holders have.

    19. PointZeroOne
      Posted 30/11/2011 at 4:19 pm | Permalink |

      Hey toshP300 do you download any movies/tv shows, or are you 100% upstanding citizen.

    20. Lycratops
      Posted 30/11/2011 at 4:47 pm | Permalink |

      Good article. Self interest drives everything we do, not just the piracy debate. But important to clarify what those self-interests are for each party involved.
      It always amuses me, why the content industry chooses to hassle the ISPs about piracy? The content industry hassling the ISPs to do something about copyright piracy is like ordering the bus company to arrest the thief, that rode on a bus to steal a CD. You thought the content industry was just behind the times in not being able to make the content easily consumable, they are so far behind times they don’t even know who to blame.

    21. Bazza
      Posted 30/11/2011 at 4:52 pm | Permalink |

      Blaming ISP’s for piracy is like blaming car manufacturors for motorists speeding. Wake up.

      • Noddy
        Posted 30/11/2011 at 5:56 pm | Permalink |

        I don’t think they are getting blamed for it. More for protecting people from the consequences. It’d be like the RTA refusing to release the name and address of the registered owner of a car seen speeding when given the number plate.

        • Shane
          Posted 01/12/2011 at 6:51 pm | Permalink |

          On the other hand, would you want the RTA to freely volunteer your name and address to every road-rager who rang up because they didn’t like the way you drove past them last night?

          No, if the “content” industry wants your name and address, they can damn well get a court order like everyone else. As the court pointed out, that’s what discovery orders are made for.

          Frankly, I’m sick of copyrights and patents. The system has served its purpose, it has promoted science and the useful arts, it’s time to phase it out before the wolves finish closing in.

    22. Posted 01/12/2011 at 1:09 pm | Permalink |

      I would use that Flash crap if you paid me and I get heaps.

    23. EnJaySee
      Posted 01/12/2011 at 4:33 pm | Permalink |

      Excellent article that really highlights my concern as a consumer. Why don’t consumer interests groups ever get involved in these debates?

      You can go ahead and write a mini-essay on why piracy is bad or why the big media groups are bad and you can pull out numbers from some thinktank, but what I want to know is who’s representing my interests?

      I used* to pirate because I couldn’t get what I wanted when I wanted. Call that selfish, but isn’t that what drives consumers? Consumers drive business, if the consumer wants a service or product, who’s going to step in and provide it at a reasonable cost?

      I’m just one person out of millions, but if there was a service that allowed me to download and watch what I wanted, when I wanted to I’d happily subscribe to it.

      *I used to download whatever I wanted to see\hear, but these days I can’t even be bothered doing that anymore. I’m a consumer of the 21st Century.

    24. GlennB
      Posted 02/12/2011 at 4:30 pm | Permalink |

      Interesting article and responses.

      I think tosh has a good point about the different stakeholders and the problems associated with renai dismissing them as unnecessary middlemen, but misses the point with his/her own generalisations about piracy motivations in Australia.

      I can’t speak for anyone but myself, but I know I tend to pirate TV shows mostly out of frustration with the commercial networks here in Australia. They promise the world (freeview) but rarely deliver. How many of you have had your show cancelled in the middle, or had it moved randomly to another timeslot so that you miss it, or had parts of the show cut (i.e. Top Gear)? To stick with commercial TV is to accept poor anti-customer service, that simply means you miss out. I appreciated the effort by some commercial tv to bring an episode direct from the US straight after it has aired, but that do that inconsistently as well.

      Consistency and reliability is key.

      The other aspect is a pretty basic consumer issue. Legit products that are lumbered with horrid restrictions are simply an inferior product to the one sourced via torrent. So consumers that are concerned with doing the right thing are always going to be the ones worse off.

      Content producers and distributors have a right to protect their investment, but they need to realise that their current approach is anti-the-people-who-actually-want-to-give-them-money, which from my perspective is unproductive. Rather than thinking outside of the box and rejigging their business models to suit a new reality, they want everyone to prop up an outdated business model.

      When I buy a movie, am I buying the right to view the movie or the media it comes on? if i have a right to the view the movie, then why not give me access to that movie on other mediums (with a nominal extra cost associated with alt. mediums where appropriate)?

      It was pointed out that movies cost a lot to make. Sure they do, especially when actors can get 20-30 mill a movie. How about actors get paid more reasonable salaries and studios cut the costs down to accomodate a different business model?

      Why is a digital product more expensive (without good economic reason, like the point made earlier about different standards of living) in different countries? or more expensive than the non-digital version of the product? Box copies of Activiation games are cheaper than the digital version on steam in australia? There is no valid reason for this, and companies like Activision are demonstrating why the consumer rebels against such negative corporate behaviour.

      In the end, the consumer needs to take responsiblity as well, but I believe that those that will pirate no matter what are not the ones that industry needs to address, as they will never act ethically anyway. What needs to happen is creative business that rewards the consumer for acting ethically and doesn’t leave them so far behind the greedy bastards that couldn’t care less.

    25. Gav
      Posted 05/12/2011 at 10:01 am | Permalink |

      The industry in Australia could really do itself a favour and do a better job of providing content online. I was looking for an album last night by Aussie band The Waifs, called Up All Night, from 2003.

      Sanity (CD): $29.99
      iTunes: $16.99
      Amazon (CD): USD$16.15
      Amazon (MP3): USD$8.99

      Is there any incentive at all to buy from the Australian store? Even if the exchange rate was cut in half, iTunes would only barely be cheaper.




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