Brandis’ anti-piracy proposals hit Cabinet already



news Federal Attorney-General George Brandis is reportedly set to introduce two proposals to Federal Cabinet that could see Australians who pirate content online receive warnings and Internet service providers forced to block file-sharing sites such as the Pirate Bay, in a move that comes without any public consultation on the issue.

In February this year, Brandis gave a major speech in which he re-opened the issue of Internet piracy. At the time, Brandis appeared to back a scheme proposed by a coalition of most of Australia’s major ISPs in November 2011 which would see the issue of online copyright infringement handled through Australians being issued with warning notices after content holders provided evidence that they had breached their copyright online — and the door opened for ISPs to hand over user details to the content industry if the behaviour continued. iiNet has subsequently pulled out of the scheme.

However, Brandis subsequently upped the intensity of his discussion on the issue. In late February the Attorney-General threatened to introduce legislation to deal with the issue of Internet piracy in Australia unless the ISP and content industries can agree on a voluntary industry code to deal with the issue.

And several weeks ago other elements of the content industry intensified its public pressure on the issue, telling media and marketing site Mumbrella that all options for dealing with Internet piracy were on the table, from court orders to target pirating users, to ‘three strikes’ mechanisms and website blocks.

Brandis had been expected to open public consultation on the Internet piracy issue, following the ongoing debate the Attorney-General opened on the topic in February.

However, in an article published today, the Sydney Morning Herald reported that the Attorney-General appeared to have already made up his mind on the issue and would shortly table two concrete proposals to Federal Cabinet. There are reportedly two proposals: “One is internet service providers being required to issue warnings to people who repeatedly download illegally. The other is forcing ISPs to block file-sharing websites such as Pirate Bay.”

The news comes as last month it was revealed that a key lobbyist for the anti-piracy group originally known as the Australian Federation Against Copyright Theft enjoys a congenial email relationship with Roger Wilkins, the secretary of the Attorney-General’s Department and other senior officials, with the lobbyist regularly using the channel to pass on anti-piracy propaganda.

The Attorney-General’s Department has previously hosted talks in 2011 and 2012 between the ISP and content industries about the issue of online copyright infringement, with the stimulus for the talks appearing to come from the department itself in the form of Wilkins, and not the Australian Labor Party, which was in power at the time. However, despite the fact that the ISP industry proposed a voluntary industry code to deal with the issue, the talks eventually collapsed, with major ISP iiNet stating that discussing the issue with the content industry was like “talking to a brick wall”.

The 2011 and 2012 talks explicitly blocked consumer representatives from attending the talks. A number of journalists and digital rights groups fought a furious and protracted Freedom of Information battle with the department just to get the most basic information about the meetings, which were held behind closed doors and involved the largest companies in the ISP and content industries. It is still not clear what was discussed, as the department believes disclosure of the agenda to be contrary to the public interest.

After nine months, the department eventually did invite at least one dedicated consumer representative to the talks — the Australian Communications and Consumer Action Network, which the Government directly funds. But at least one of its representatives was quickly forced to step out, due to a conflict of interest which saw them also representing rights holders.

The news comes as consumer group CHOICE has recently severely criticised Brandis for his comments re-opening the Internet piracy debate, and particularly his mention of a “graduated response” scheme, which could see users hit with a series of warnings before facing penalties for copyright infringement.

“Three strike schemes have proven to be ineffective and costly in other countries. They have also undermined the rights of consumers to due process,” said CHOICE CEO Alan Kirkland in a statement. “If implemented in Australia, these measures would push up the price of internet access without any impact on piracy.”

“Nobody supports internet piracy but punishing consumers is not the answer. The best way to stop piracy is to make it easier for Australians to pay for content like movies and television series at internationally competitive prices. The main driver of piracy is frustration, as Australians look overseas for flexible, affordable and timely content. Piracy in Australia is driven by a market failure, plain and simple. The Government should be embracing the internet as a source of innovation and development, not restricting it.”

In addition, the news also comes as content distributors such as Foxtel have recently made it significantly more difficult for Australians to access premium content without potentially infringing copyright. In early February, for instance, Foxtel signed a deal with US cable TV giant HBO which will block the popular Game of Thrones show from airing through any other medium than Foxtel — at all — apart from DVD release. The news resulted in record local piracy rates of the latest season of the show.

My opinions on this issue are very clear: Ordinary Australians must be allowed to have their say on how Internet piracy should be handled; and secondly, the answer to piracy should be a commercial one, not a regulatory one. As I wrote for the ABC in February:

“Once again, the Federal Government has decided that something absolutely must be done about the pesky issue of internet piracy of popular TV shows and movies. And once again, it looks like the people most affected by any action on the issue – Australian consumers – are being completely locked out of the conversation.

There is no doubt that the Australian public does have views about internet piracy, and on both sides of the debate. A poll by Essential Media this week found 38 percent of the population, predominantly Coalition voters, supported government action on the issue, while 42 per cent, predominantly Labor and Greens voters, opposed it.

But we’ll never know quite what those views are, especially the nuanced details, unless the Federal Government starts discussing the issue openly and involves consumers and their representatives in these kinds of talks. Massive corporations and government bureaucrats should not be able to decide the future of Australians’ access to content without the ordinary punter having their say too. The only way to characterise that situation would be “undemocratic”.”

And as I wrote in an article about Foxtel’s Game of Thrones lockup in April:

“If Game of Thrones has one central lesson, it’s that change never stops and history cannot go backwards. Today’s King in the North may very well likely be tomorrow’s dogfood, if he plays his cards wrong, and nobody can put his head back on his shoulders once it’s been lopped off like a bit of cheap lumber. Internet piracy is not new: It’s been going on now for several decades. The only way to address it, as Steve Jobs conclusively proved during the days of Napster and Kazaa, is to offer a better service.”

Image credit: CeBIT, Creative Commons


  1. Remember, it´s not a surprise if you yell ¨Rape!¨ first, the new joke from Phoney Tony´s Government, now bend over Australian consumers.

  2. Once again we see ignorant politicians rushing to control the Internet. God forbid Brandis should actually ask the people what they think should be done about piracy. They might suggest things like… lower prices… and…. speedy release scheduling! The horror! No, it’s far better to just push ahead with the 3 Strikes and Website Blocking schemes – the brilliant plans that had absolutely no effect on piracy whatsoever in either New Zealand or the UK.

    For the record, I don’t pirate. I pay for the content I consume, be it via Blu-ray, DVD and or streaming services. I have a Netflix account (although apparently that makes me a pirate anyway, so what do I know). I’m watching Breaking Bad right now. It’s available whenever I want and all it’s costing me is roughly $10-12 a month. Until an Australian service comes along that offers the same level of content, delivered with the same visual quality at the same price, I will continue to “pirate” Netflix. I will not subsidise the broken, 20th Century business models that Australian companies like Foxtel employ.

    • I’m not sure why I seem to be the only idiot banging this drum, however there is a simple solution: Ban exclusive on-line content deals using similar legislation to that which enabled the physical bricks and mortar video stores to thrive in the 80’s/90’s.

      Then Quickflix and BigPond movies and FetchTV etc can all compete on a level playing field just like the Video stores of old did – then consumers wont need to pirate their fav shows (eg Game of Thrones) or use DNS tricks to subscribe to NetFlix, Hulu and HBO!

      • “Ban exclusive on-line content deals using similar legislation to that which enabled the physical bricks and mortar video stores to thrive in the 80′s/90′s.”

        Hmm … how do you propose to enforce such a ban? Unfortunately, the situation today is not analagous to the book and video sitation of the 1980s/90s

        Then, we had a problem where local wholesalers were not importing items they thought uncommercial, but were then using their exclusive distribution license to bar other “grey” imports. New legislation then allowed local retailers to approached overseas wholesalers to obtain supply.

        Today, we have no wholesaler problems. Rather, we have the local retailer (Foxtel) dealing directly with the publisher, HBO. There is no other source for Game of Thrones. Anyone who wants to broadcast this MUST deal with HBO.

        What will new legislation achieve here? If, as has happened, Foxtel sign a deal with HBO for exclusive access, how can we force an overseas entity (HBO) to deal with a local broadcaster?

        We can’t, of course.

        On the other hand, making it illegal for an Australian entity to sign an exclusive distribution contract with an overseas supplier seems, to me, to be on very shaky legal grounds, especially if such a contract is governed by overseas law, as I’m sure the Foxtel/HBO one is.

        • What’s difficult about having a fair dealing anti-content monopoly regime in place?

          There are plenty of legally enforceable examples which would make good models, eg the “FRAND” licensing system (Fair, Reasonable, And non-Discriminatory) for patents included in International Standards etc etc.

          Under a system like this, any local content licence holder (irrespective of if they are Foxtel or a Movie studio subsidiary) must licence their content to any entity that requests access to the content and must do so at fair prices – it would instantly prevent the current Foxtel content lockdown. The only thing a sensible government would need to do is have an exception for live sports – imo replay rights should come under the FRAND system.

          • I’m sorry, but I don’t think that this is relevant, either.

            According to the page you linked to, FRAND refers to the licensing of intellectual property, specifically relating to patents.

            The discussion here is not about patents, but about manufactured content.

            Live sports are not analogous, either. The rights holders here are Australian entities, and therefore subject to Australian law. HBO is not Australian, and therefore not subject to Australian law.

            I know of no laws, or precedent, that could compel a broadcaster (say, Foxtel) to share its right to broadcast a program where that right is conferred by a foreign licensor. We certainly have no power to compel a foreign entity (say, HBO) to license its property (say, Game of Thrones) to more than one broadcaster.

    • For the record I agree with what you write, but just touching on the “speedy release scheduling” side of things, I dont really see that as a problem.

      Movie comes out, movie stays in the cinema ~3 months, and is generally released on disc within a few weeks of it ending its cinema run, and available digitally at the same time.

      What do people realistically expect to change? Shorter cinema run? Release digitally while its still in the cinema? Release digitally at the same time? Seriously, most of the movies hitting the cinemas now will be on sale in September, the lesser ones generally a little sooner.

      Movies arent the problem, its TV shows. To stay relevant to the conversation for the most popular show going around, you need to either pirate, or pay $74 a month. Foxtel showed the problem earlier this year when they bought out iTunes service of the season pass option for GoT.

      That showed to most people they werent interested in a fair go to consumers, only that they get the most money they can. And they wonder why people dont agree…

      Legislation preventing one 3rd party company from creating a monopoly market for a show is the solution, as dJOS points out. Stop Foxtel from having exclusing rights across all possible markets, and perhaps consumers stop feeling like they are being held to ransom, and hence reduce piracy.

      • It’d be really interesting to see some brave distributor simultaneously release a (decent) movie to cinema/blu-ray/streaming internationally to see what would happen.

        My guess is, not much would be different, the folks hitting the cinema would still head there because it’s the social experience they are after, folks would still by the disks because they want to collect it, and more people would (legally) download/stream it on the day (rather than people pirating it ahead of the artificiality delayed release).

      • “To stay relevant to the conversation for the most popular show going around, you need to either pirate, or pay $74 a month.”

        Oh woe! If you want to fit in with the ‘cool kids’ you have to either pay $74/m (!!!) or be a pirate.

        • Glad to see you think Human Rights are ¨Cool¨.

          Article 27.

          (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

          • “Glad to see you think Human Rights are ¨Cool¨.”

            I do indeed, for example, if you read *both* paragraphs from Article 27:

            (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

            (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

          • Ah, Mr Gane, so you have a new pseudonym, or have you reverted to an old one so as to avoid answering questions? Since you previously have chosen to quote only one of those paragraphs, why shouldn´t I do the same as you?

            Oh, and while you are here, are we any closer to getting an answer out of you as to why your using Delimiter articles BEFORE you had been given permission shouldn´t count as one strike towards having YOUR Internet access cut off?

          • Play the ball, not the man – particularly if the man clearly is not who you claim he is.

          • When you and your chums send copies of this off to Brandis do you point out the posts made by yourself under a pseudonym, or do you just totally ¨Catfish¨ Brandis by pretending your posts are evidence that Australians (who aren´t lobbyists) are eager for Internet Censorship?

            And, as to deciding how I may comment on this topic, you´ll just have to wait until after Brandis has done the deed to earn his 30 pieces of silver.

  3. Totally agreed that it is a market failure. People will always built a better mousetrap for sharing, so you can’t fight it without resorting to a totalitarian state.

    If a popular show, say GoT, was offered in HD for a few bucks an episode at the time of first airing there would be a massive drop in piracy of that show IMHO. Particularly if you could buy it, watch it, and keep it (cloud or local) for later. Most people want to reward and encourage creation of content, and do the right thing.

    The whole notion of long-term subscriptions to bundled content packages (ala Foxtel) is just bizarre in a world of Spotify, iTunes, etc. We should protect copyright and uphold the rule of law, but we shouldn’t encourage or protect business models for no other reason than they are incumbent.

  4. You know, i actually think this can be likened in some ways to children’s discipline. The approach they are taking is akin to grounding kids and ‘shielding’ them from the ‘dangers’ of the internet.

    In some small way i can understand the reasoning, but in most other ways it just doesn’t make sense. Especially when you consider that most people that can pay for the internet aren’t children (though some may be childish). Generally this kind of punishment doesn’t work well for adults. Whats more it has been proven to have no effect in other countries.

  5. The most troubling aspect of this is the unfortunate confluence of the rising evidence of influence corruption in the Coalition(thank you NSW inquiry), at the same time as the AG refuses flatly to complete the AusFTA copyright completion by of FairUse doctrine which is what makes the DCMA workable.. and his obduracy in clearly intending to cripple the Australian public(leaving liable to criminal prosecution) by omitting to enact this prior to the signing of the TPP.

    I am reluctantly coming to the conclusion that the current government is governing solely for their big business mates.. one can only speculate what kind of jobs emerge after politics, as the classic ambassadorships, paid boards etc seem now to be becoming only the baseline for more and more secret lobbyist funding links emerge…with th obligations that come with them.. perhaps this action by the AG was overwhelmingly influenced by lobbyists- it does appear from the Article that this might perhaps be the case on this occasion..

    While this has of course been a weakness in our government for ever, the sheer lack of any sense of responsibility to or trust in the community that elected them (on a very different agenda to the corporate one now emergent), makes this troubling further example of the progressive abandonment of any form of detectable integrity. in the government.

    This rapid loss of rust in government is a keystone to democracy, and in our case we have a feeble and limited constitution that gives us little or no power of stand our ground on constitiutional principle against arbitrary actions by this increasingly feudal administration (id like to use the word ‘government’, but it does seem to be straining the definition somewhat)..

    Instability is all to easy to engender in modern societies.. I wonder how many more basic trust brick removals our country can stand?

  6. Curious if they’re going to define piracy as using hulu/netflix/hbogo from Australia for the sake of these bills.

  7. I like Nich’s comment. It makes it quite unambiguously clear that its probably a Trade issue and not a piracy issue.

    I wonder how it would place an American working in Australia temporarily and using a VPN to access his/her existing and continuing hulu account?

    From Brandeis’ level of (non) understanding it would catch him too..

    Of course if (perish the thought) this was really Brandeis’ doing the bidding of ASIO et al for total population asymmetric surveillance…under the guise of ‘piracy’ .. then perhaps this could be easily handled via such surveillance..

    A surprising side benefit for the US citizens when over here!

    Another Aussie welcome!

    • This was all hinted at with the emergence of the Trans Pacific Partnership that has just been or is in the process of being signed. Which would mean that Disney/Paramount/CBS etc etc could all sue the Australian Govt if they do not pursue this and reign in ‘piracy’ in Australia. These were trade agreements we weren’t allowed to question or equivicate over as they held the talks in private.

  8. He doesn’t need any public consultation, he already knows the public hate the idea. But he doesn’t have to listen to us, cause it’s not like we pay them or anything…oh, snap!

    My guess is he’s aiming for a plumb copyright lobby job once he gets turfed out, there really is no other reason that makes sense.

  9. I think the question these content produces should ask isn’t “how can we reduce piracy” but instead “how can we maximise revenue”. Right now the content that I do tend to pirate is stuffs that I could wait for and watch on TV. Or it’s stuffs that I’ll happily purchase a physical copy of when it does come out. The most ridiculous piracy I do is for shows that I could watch on an on-demand service but choose not to because the on-demand version is sub-standard def while the pirated version is 720p.

    Fix up your streaming services, let me access some of these TV shows easily. Make me pay-as-I-go rather than giving me a fixed monthly price to watch one show. Then I won’t pirate anymore. Ban piracy? I’ll just wait, I’m not going to pay more unless the service improves significantly. I’m consuming more free user generated content via Youtube these days anyway.

    • “Fix up your streaming services, let me access some of these TV shows easily…”

      I’m surprised that you have difficulty accessing TV shows easily, have you heard of ABC iView, SBS OnDemand, Plus7 etc? How about FTA?

      • I think you missed his point. The avenues for watching TV you mentioned contain only a small amount of the content available via “pirating”, and/or make it available much later, and/or show it in poorer quality.

        • You´re missing a point too. He is one of the Lobbyists the article refers to, and he wants to put comments that show how ¨reasonable¨ they are in suggesting ¨solutions¨, and the nasty old pirates just wont listen, then he can run to Brandis with a copy of this article and show him.

          Unfortunately, to do that he will have to tell Brandis that he has been posting to this site under pseudonyms. And, the question then will be, if he used one pseudonym maybe he also used 2, or a hundred, or maybe all the comments are by lobbyists trying to falsely give the impression of a plague of pirates. Hell, maybe I am secretly a lobbyist trying to fool Brandis into thinking there are more Pirates. You reading this, Brandis, people are lying to you, especially the lobbyists.

  10. Brandis must have finally received his orders from Murdoch/NEWS LTD re Foxtel having a monoply on Australian Viewers so they can gouge them unmercifully,I think we have the most expensive Pay TV in the world.
    Well he can bugger off I will down load what I want went I want

    • Don´t use Vypr/Giganews they log activity and are beholden to the anti-torrent lobby, and yes I am speaking from personal dealings with Vypr/Giganews.

  11. I agree with the need for better competitive practises instead of the major monopolistation of content in the manner of the evil empire (fox). I also am aware that phoney Tony is beginning to look at lobbyists and their direct impact on the LNP should questions be asked of the appropriateness of their relationships. Of course leaving something like that in the hands of ANYONE within the LNP is also ludicrously naive particularly if expecting change in the way they do business. And I have to say I am finding this government to have closer spiritual ties to Autocratic/Totalitarian rule than any hint of democracy.

  12. Then of course you get artists like Trent Reznor, (Nine Inch Nails), who toured Australia following the release of his 2008 album “The Slip”. At a concert in Sydney he asked fans how much they were being asked to pay for the new album. When he heard they were being asked for $30 + he got angry, said it was a fucking rip off, that Aussies were being taken advantage of, and that they should simply steal it from the internet.
    Question is, are we being charged more for the same item as people in the US or UK are asked to pay? If we are, why?

  13. I’m currently feeling ripped off by GoT, not worth the Foxtel Play subscription at all. I might even throw it in before the current series is over. I had the patience to read the books, but season 4 so far is a yawn fest other than the drawn out royal wedding.

    Tyrion’s trial had better be episode six.

    IIRC Renai said the show had jumped the shark. I didn’t want to believe it then.

  14. Piracy is not a legal nor a technical problem for ISPs to fix. It’s a marketing and service delivery problem for content providers to fix.

    iTunes showed the world there’s big money to be made in selling people exactly what they want with no nonsense. The equivalent services on offer for movies and TV shows are poor, and cable TV is just plain pathetic.

    In a world of high speed internet and media enabled devices, it should be trivial to sell TV shows and moves episodes or season at a time for a reasonable price, that can be played on any device without special software or hardware vendor lock-in, and do so free from advertising.

    The video game industry has seen this boom already. There are dozens of online services available now to purchase and play games with few restrictions and for reasonable prices. Why have the media industries (with the exception of Apple iTunes) not figured this out yet? Instead they’re wasting their time on stupid “three strikes” laws, when they should be working out how to beat their competition into delivering a profitable service that keeps paying customers happy.

    • Except, of course, that some online providers like Hulu are blocking access to known VPN sites.

  15. Well, it will be fun to watch as the first coalition voter gets pinged for downloading GoT and wails to the press… still, you vote for penii with ears, you get shafted…

  16. Worth noting a comment on


    From the Journal of Political Economics – Feb 2007
    “The Effect of File Sharing on Record Sales: An Empirical Analysis”

    This was looking at music sales only, but the key conclusion is:
    “Using detailed records of transfers of digital music files, we find that file sharing has had no statistically significant effect on purchases of the average album in our sample. Even our most negative point estimate implies that a one‐standard‐deviation increase in file sharing reduces an album’s weekly sales by a mere 368 copies, an effect that is too small to be statistically distinguishable from zero.”

    Date and time
    May 05, 2014, 1:01PM

    • Another comment with a valuable link

      News Ltd CEO Kim Williams
      “Mr Williams took aim at Australians for downloading content on BitTorrent and using proxies to get around geographical restrictions on foreign websites.”
      And he warned that it would only increase as more people got faster access to the internet.
      “It is getting worse and will get even worse still once everyone in Australia has access to super-speed broadband through the National Broadband Network,” he said.
      “Some say internet traffic will quadruple between now and 2016.”

      “Yes, Netflix And Hulu Are Starting To Kill Cable”

      “Fetto said that cable companies, which of course are often also the gatekeepers to the Internet, will have to get more creative with their billing to make up for the revenue lost by people who are cutting the cord.”

      Charles Foster Kane

      May 05, 2014, 11:29AM

  17. Frankly, I’ve been on the net since before Australia had the net, Brandis can’t stop me, Murdoch can’t stop me, Feds can’t stop me – Change your business models or go the way of the dodo.

    Within a few days I’ll have a secure network to the US set up and send all my traffic through that. All for the grand price of $3 a month. Oh look I’m paying to get my TV shows – such a pity you couldn’t make a deal worth doing with me.

    You guys are really just a bunch of old men trying to deal with the fact that the world has changed around you.

    And good riddance.

  18. It’s funny how purchasing the same content overseas (eg anti-netflix arguments) is considered a violent sin right up there with stealing.

    That it denies local companies income (whom should be paying royalties regardless) does not concern me in the slightest – they have had ample time to find a business case and sell it to the industry.

    The rights holder (should) receive the income, regardless of the origin of source (local or US); ergo I am meeting my obligation to the holder of the art or work; I am happily paying for their effort.

    It’s a logical fallacy argue I can only pay that same artist or owner by purchasing here.

    What it does do, is simply prove that there is absolutely no rights related argument here, but simply who gets to take the money.

    Sound familiar? It should. The music industry also tried to make the same argument once upon a time.

    Now commercial music is released simultaneously across any number of countries; it’s available from a huge number of online services, all for a moderate (often reasonable) fee.

    All the things the consumer asked for. It’s never really been a technology question, but simply moving with the market.

  19. Everyone seems to focus on the Emperor’s amazing new costume! Look at the message, not the other stuff.

    The overall aim of the acting-Democratic-Labour-Party (via Tony Abbot) is to stop information dispersal, including music, newspapers, online forums, etc. It’s similar to the Vatican, North Korea & Russia.

    All this inquiry into traditional religions via rational discussion of music, sciences, facts … is too much for conservative-loving traditionalists. So there. You must listen to us oldies, or Tony Abbott’s secret police will get you locked away! When these Aussie laws are put on you, you will never be allowed to tell us here, or anywhere.

    Sieg Heil, the mad monk!

  20. Look at that man’s face…. In Australia they still add floride to the water wich causes the brain to calcify and here you can clearly see a man who has no brains left

  21. Has anyone considered the American two tiered internet provision being forced on us.

    Then any ISP not obeying the government will have their speeds cut, which would force them out of the marketplace as clients jump to the high speed ISP on the top tier.

    It’s not as if the Australian government or any corporation has ever given a shit about the public.

Comments are closed.