[ad] The service leader for Cloud is now in Australia. Secure, reliable cloud and managed hosting all backed by 24x7x365 Fanatical Support. Create your free account now.
Buy an Seagate Business Storage NAS for your chance to win a holiday
[ad] Purchase a selected Seagate Business Storage NAS to receive a $20 cash-back AND go into the draw to win a $1,000 Flight Centre voucher so you can holiday in the destination of your choice. T&Cs apply.
How mobile and social media affect your Customer Experience strategy
[ad] How will the adoption of mobile devices and social media affect your Customer Experience strategy? Are you reaching your organisation's customers through these touch points? Click here to download a whitepaper by Fifth Quadrant examining consumer and business attitudes to these new contact channels.
Great articles on other sites
- Turnbull to release NBN review next week
- Canberra blitzes states with NBN take-up rates
- War on whistleblowers from Abbott, Turnbull as ICJ case arrives
- Stockland tech revamp at centre of growth plans
- Clare warns of Gonski-like backflips on the NBN
- Victoria seeks early buy-in to avoid past disasters
- Vtalk bucks the China trend with plan for Aussie build
- Booksellers bristle at Amazon's arrival
- Australian customers upbeat on Dell going private
- FTTP NBN supporters lobby Turnbull
50 things top IT pros need to know
[ad] This 18 page TechRepublic whitepaper explores 10 things you should know to become an epic IT manager, 40 other essential tips to advance your IT career and practical guidance for starting an IT consulting business. Click here to access the whitepaper.
The new IT manager: Trends affecting IT in business
[ad] The tables have turned for IT managers. IT used to be able to dictate which computing assets would be used by employees and how they would be used. No longer. This free GigaOM Pro research paper (click here to download it) gives a solid, fact-based perspective on how IT consumerisation, mobile computing and cloud delivery trends are changing the paradigm.
Analysis, Gadgets - Written by External Contributor on Monday, February 6, 2012 11:14 - 10 Comments
AFL rights: Optus, Telstra in a techno-legal time warp
This article is by Martin Hirst, an associate professor at Deakin University. It was first published on The Conversation and is re-published here with permission.
analysis Telecommunications giant Optus managed to convince the Federal Court in Sydney this week that there’s a legal blindspot in relation to its download pay-per-view service.
Telstra – given its business relationship with The National Rugby League (NRL) and Australian Football League (NFL) – had tried to prevent Optus from recording and re-broadcasting matches screened on free-to-air television. But Justice Steven Rares found Optus’s mobile television service didn’t breach the Copyright Act for a couple of reasons: Optus keeps separate recordings for each customer, and individual customers are responsible for requesting the recordings. So what’s going on here?
To my mind, former rugby league coach Roy Masters – ever the shrewd observer – hit the nail on the head when he wrote the following for the Sydney Morning Herald yesterday:
“They framed the copyright laws to protect the average punter from being sued for taping a TV show, including a football match on his home recorder. Now, their legislation is being used by Optus to sell a service.”
Naturally, Telstra has concerns. The AFL’s A$1.25 billion five-year rights deal signed last season with Channel Seven, Foxtel and Telstra, included a A$153m payment by Telstra for the online broadcast rights to games. The NRL, likewise, expected a proportion of its next deal to come from internet rights.
We’ve done nothing wrong
Optus is not breaching current copyright laws by charging its customers for a record-and-download service that includes material in which its competitors hold some or all of the copyright.
In court, Optus successfully argued its customers already access its competitors’ content via free-to-air television and record and replay programs when they choose to. This model of free distribution is embedded in our media culture. Now that old interpretation of the law – protecting home recording rights for the “average punter” – lets Optus monetise a data stream for its customers, using free content provided at great cost by others.
The potential appeal issues confirm it’s about the income from broadcast, repackaging and online rights. The AFL and NRL are claiming a loss of trade. If they stick to their word and fight back, and Telstra joins in, it could cascade into a series of messy contract disputes.
The whole issue is further complicated by the pay-TV siphoning regulations in which all litigants are also stakeholders alongside Foxtel. As everyone knows, from the Communications Minister Stephen Conroy down, the regulatory regime and legal framework for the digital economy and the new convergent media landscape is out of step with the machinery of change. We have a high-performance engine under the hood, but the tyres and the suspension can’t really handle the speed. We are living through a techno-legal time warp.
The laws that worked to allow the “average punter” to record and replay TV shows using personal recording devices (such as TiVo) are now creating lucrative business opportunities that everyone involved in this legal stoush is keen to exploit. Monetising the click-stream is the main game in digital Dodge City and an analogue copyright law is not player-friendly for everyone. Contrast Masters’ old-hand wryness with the corporate-speak from Optus spokeswoman, Clare Gill:
“This has been a win for Australians, for innovation and for the law. This is a product similar to things that you can do today. So we see this no different (sic) from any other personal video recording device.”
As one punter wrote on sports website The Roar, it’s not a pretty sight to see communication giants slugging it out: “The battle between the telcos is getting ugly, and the sporting landscape is getting caught up in it.”
At the heart of the legal issues is the Copyright Amendment Act of 2006, which specifically allows home recording of free-to-air TV content. At the time smartphones were not so ubiquitous and the download technology was clumsy. The law worked for its time. But not any more. The techno-legal time-gap kicks in when the technology perfects a new application that the old rules were not designed to deal with. Here, the respondents argue, the law is out of date.
A review of digital copyright law was announced late last year by the then Attorney-General Robert McClelland. This is way overdue and may still take some time to come to fruition. The problem we have is that nothing in the government’s much-vaunted and much-despised Convergence Review seems to deal directly with this issue.
The interim report from the Department of Broadband, Communications and the Digital Economy (DBCDE) doesn’t even deal with copyright law and, in a section where you might expect to find some comment on it – chapter seven, entitled “Competition” – there is only hollow sentiment and principle:
“Submissions to the Review addressing competition fell into two broad categories:
- Some stakeholders argued the market is functioning effectively and existing ACCC [Australian Competition and Consumer Commission] powers are adequate when anti‑competitive situations arise (including in relation to content)
- Other submissions expressed concern that emerging market situations could reduce competition in content and communications markets and that these situations will require a flexible operational response from the regulator.
The regulator should be entrusted with suitable powers to deal with content‑related competition issues in rapidly changing markets.”
Surely taking copyrighted material and on-selling it, as Optus looks set to do, is “anti-competitive”, even if a six-year-old loophole says it’s OK to do it.
The techno-legal time-gap
I first wrote about the techno-legal time-gap in 2006 in Communication and New Media: From Broadcast to Narrowcast, a book I co-authored with John Harrison. In that book we made the point that legal, moral and ethical debates and regulation lag behind the speed of technological change.
My example at the time was peer-to-peer file-sharing, but within a year of the book’s publication, Napster and others were facing huge legal threats and were effectively shut down. The problem then migrated to The Pirate Bay and other BitTorrent) sites. As that appears to be resolved – to the commercial satisfaction of some players – a new front has opened up. The latest target for the anti-piracy forces is Kim Dotcom, the founder of the Megaupload “cyberlocker”. Dotcom’s repurposing of other peoples’ content has got him into serious trouble. Other service providers are also caught up in this net.
The fights over copyright – or “copytheft” to some – are not the only digital skirmishes. The very concept of privacy – both real and online – has been blown wide open. Not only has there been rampantly criminal behaviour that exploited loopholes in phone security leading to a tsunami of scandal engulfing the Murdochs, it seems our total being is exposed online. Daily hacks and distributed denial of service (DDoS) attacks compromise data, much of it personal and all of it valuable in the surveillance economy.
It’s not just credit card fraud and online dating scams – seemingly innocuous transactions – buying products through online vendors, for instance – leave a trail that is collated, digested, modeled and spat back as marketing or social enhancement experiences.
It’s hard to see the “white hats” among the online baddies. But caught up in all of this today we have Julian Assange, a military whistleblower (Bradley Manning) and a collection of techno-savvy activists (Anonymous) attempting to bring down the military-industrial complex. They are all now caught up in the time warp. But the regulators are not having it all their own way.
The Stop Online Piracy Act (SOPA) protests of the past few weeks forced a backdown in the US over so-called internet censorship laws.
The time-gap exists across social media too. In 2006 Facebook was new and exclusive, Twitter was just around the corner, smartphones cost a fortune but the apps weren’t that good. In half a decade things have changed dramatically. These paradox effects will continue. The review of copyright law, a new round of privacy commission policy papers and the convergence review are all institutional attempts to deal with the contradictions, loopholes and inconsistencies.
We see the same pressures exerting themselves on the Australian Press Council and other regulators too. Analogue models of regulation, control and ethical boundary-setting are no longer working smoothly. The Media and Entertainment Arts Alliance (MEAA) code of ethics was updated in 1997, but it too is now showing its age.
Where are the guidelines for journalists on managing their social media accounts? Where is the advice on how to deal with lifting material from Facebook or YouTube to illustrate a story? I have collected several examples of these problems and discuss them on my blog (Ethical Martini). Ripping images from Facebook, for example, is a breach of both copyright law and an invasion of privacy (even if legal).
None of these problems is easily fixed. They are global issues and the World Trade Organisation is one of several transnational bodies looking for answers. The danger here is that regulators go with a business-friendly commercial fix, rather than regulation in the public interest. At the heart of capitalist property law is the right to exploit: just ask Optus.
Martin Hirst is the author of News 2.0: Can Journalism Survive the Internet?
Image credit: Back to the Future, Universal Pictures
Latest Delimiter 2.0 articles (subscriber content)
|Politicians from Australia’s major parties need to stop issuing ludicrous blanket pardons for the intelligence community’s ongoing misdemeanours and start applying a basic modicum of transparency and accountability to this important national security function.|
|The independent pro-fibre National Broadband Network movement is doing a far better job of promoting Labor’s Fibre to the Premises-based NBN policy than Labor itself. When is Labor going to wake from its slumber and start supporting this scrappy but energetic grassroots network of activists?|
|Ziggy Switkowski's first substantial public appearance since being appointed NBN Co chief executive has starkly demonstrated just how different he is from his predecessor, Mike Quigley, and just how strictly he will adhere to the guidelines which his patron, Communications Minister Malcolm Turnbull, has set for him.|
|Australian technology companies have been virtually absent from the the nation’s public stockmarket over the past decade as the stigma of the dot com bust took its toll on investor confidence. But a clutch of new listings planned for the closing months of 2013 shows renewed interest in the sector and that local entrepreneurs are smelling money in the air once again.|
|NBN Co’s Strategic Review process gives the company an unmissable opportunity to re-evaluate the early decision to deploy its FTTP network primarily through Telstra’s underground ducts. The company and its new Coalition masters must now seriously consider deploying more fibre aerially on power poles in an effort to speed up its rollout substantially.|
|That moment which many Australian technologists fervently hoped for but never expected to see has come to pass: Simon Hackett has been appointed to the board of the National Broadband Network Company. But what questions should the Internode founder be asking NBN Co’s executive management team? Here’s five ideas to start with.|
|The rapid replacement of respected NBN Co chief operating officer Ralph Steffens with a Telstra executive who appears less experienced with fibre rollouts but better politically connected represents a key signal that NBN Co’s senior executive hiring process has now become completely politicised and is no longer independent from the Federal Government.|
Enterprise IT, News - Dec 6, 2013 12:50 - 0 Comments
More In Enterprise IT
- Payroll disaster: Queensland sues IBM
- End of an era: Oracle Australia’s ‘safe hands’ leaves
- Qld launches whole of government IaaS panel
- Defence finally allows staff iPhones, iPads
- NSW Govt refreshes ICT Advisory Panel
News, Telecommunications - Dec 6, 2013 11:54 - 78 Comments
More In Telecommunications
- NBN Co internal FTTN analysis: Turnbull refuses to retract inaccurate claim
- Defying the Senate: Turnbull to release NBN Review by end of 2013
- Senate to force Turnbull to publish NBN Review
- Get on with FTTN job, Quigley tells NBN Co
- Senate circus shows politics has no place in NBN
More In Industry
- Xbox One goes off with a bang … but will the PS4 launch eclipse it?
- It’s not just Freelancer: Aussie tech IPOs are back in general
- Freelancer’s IPO: A billion reasons to care
- Australian retailers online: Late to the party and much to do
- DesignCrowd picks up another $3m
Digital Rights, News - Dec 5, 2013 14:08 - 25 Comments
More In Digital Rights
- Global privacy group files formal ASD complaint
- Labor open to surveillance discussion
- Snowden an “American traitor”, says Australia’s Attorney-General
- ASD goes rogue with Aussie metadata
- It’s live: Delimiter publishes AGD FoI mirror