opinion Most Australians understand that the only solution to the nation’s record Internet piracy rates is for the film and TV industry to follow the music, book and gaming sectors and make their content available online in a timely, affordable and convenient manner. But that’s a truth rights holders and their lobbyists seem unwilling to accept.
I couldn’t help but laugh when I read the 600 word defence of the Federal Government’s pending anti-piracy proposals which Australian Screen Association managing director Neil Gane published yesterday on the website of technology media outlet Techly. To Gane, tragically steeped as he is in the incredible self-delusion that the global TV and film industry appears highly susceptible to, the piece must have seemed like a rational argument.
But to any technically literate Australian reading it, it would have come across as the kind of pure unadulterated nonsense which even children below the age of five would be above spouting. If they bothered reading it at all.
Gane’s central claim — and it’s one which rightsholder organisations such as the ASA (formerly the Australian Federation Against Copyright Theft) make regularly in public — is that starving creatives in the film and TV industries are currently being deprived of their hard-earned income by nefarious Internet pirates, who are making money by distributing other people’s content online, as well as saving money by not paying for that content when they watch it.
Frustrated by the High Court’s common sense April 2012 ruling that — surprise, surprise — Internet service providers such as iiNet could not be held responsible for the copyright infringing habits of their users, rights holder lobbyists such as Gane (pictured above outside the Federal Court) now believe that this issue is squarely the responsibility of the Federal Government to address.
Under the previous Labor administrations of Kevin Rudd and Julia Gillard, AFACT and its cronies were able to find several key friends who helped the issue get discussed behind the bolted doors of the Attorney-General’s Department. The most notable of these has been Roger Wilkins, the famously closed mouth and fashion-conscious Secretary of the Attorney-General’s Department, who has personally raised the issue with at least three successive Attorneys-General and with whom Gane now enjoys a cozy email relationship.
The problem with the previous Labor Government, of course, is that Attorneys-General such as Nicola Roxon and Mark Dreyfus took the ISP industry’s opinion seriously when they said that trying to find a joint solution to the issue with the content industry was like “talking to a brick wall”, letting the talks lapse when they made no progress. Coalition Attorney-General George Brandis has taken the issue rather more personally and is determined to reboot it, inspired, no doubt, by the millions the content industry is pouring into the Coalition’s wallet.
On the face of it, none of this is really that much of a problem.
The most powerful argument Gane can make on this topic is to point out that a broad swathe of the Australian population actually does support action on the issue of Internet piracy. A poll by Essential Media in late February this year 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.
Australians are interested in having a conversation with the Government, with ISPs and with rights holder organisations about what a solution to the issue should look like.
The actual problem is that none of the solutions which Gane and his colleagues are proposing, in public and behind closed doors to Brandis, are actually workable.
The first point made Gane in his Techly piece, and it’s a legitimate one, is that there are a bunch of “rogue websites” out there hosting BitTorrent trackers and the like, which are making a profit from the distribution of content which they do not hold any rights to.
But Gane’s solution to the issue — dragging those websites into court — is clearly nonsense. A 30 second investigation of the Pirate Bay, for example, would find that this particular site has been sued back and forth many times. Governments across the European Union have tried to shut it down. And whole video documentaries — distributed also through the Pirate Bay — have been made illustrating why the whole legal approach has comprehensively failed.
Not only is the Pirate Bay still fully operative, but the legal case against the site’s founders went virtually nowhere, ending with only token jail time and fines. Pirate Bay co-founder Peter Sunde is so free he is currently running for political office in the European Parliament.
None of the major global BitTorrent web sites are hosted in Australia or subject to Australian law, and even if they were, shifting them to a different jurisdiction would take only half an hour’s work. Gane already failed spectacularly in suing a major Australian company (iiNet) all the way to the High Court over the issue of piracy, wasting millions of dollars of his clients’ money in the process. I’m not sure why he thinks he would have more success suing ephemeral websites which are hosted in countries such as Russia.
The other mechanisms which are similarly being proposed by Gane and others are the moment to deal with the issue of Internet piracy will similarly be ineffectual.
As was extremely well-documented during the failure of Labor’s Internet filter policy, it is absolutely futile for the Government to order ISPs to block international piracy websites — Australians can just VPN in to a friendly country’s Internet and keep right on downloading. And VPNs are cheap and easy to implement, as even many people’s mothers know, these days.
This practice also mediates against the so-called ‘three strikes’ or graduated response schemes which would see Australians pirating content warned by their ISPs each time they do so, ultimately potentially leading to the disconnection of their Internet service. Yes, as Gane points out, this kind of policy has been implemented in some countries such as France and New Zealand. But there have been few punitive actions taken as a result of the policies, and little evidence exists that they have affected overall piracy rates.
One of the most heavy-handed ways to tackle Australian piracy is for rights holder organisations to subpoena ISPs like iiNet in court for the user registration details of customers whose IP addresses the rights holders have detected downloaded pirated content. The rights holders would then be free to sue individual pirates en-masse for their copyright infringing behaviour.
This approach has actually been suggested by the ISPs themselves, and Brandis also appears pretty keen on it. The iiNet versus AFACT High Court case appeared to open the way, as it handed the responsibility for piracy squarely on the heads of the downloaders themselves, and the approach is being used internationally.
However, again, here there are pitfalls — both technical and legal. The same VPN trick can be used to get around this situation again — ISPs like iiNet themselves will have no idea what you’re downloading, and so can’t pass on your details to anyone. Then too, several early attempts to apply this kind of mass lawsuit in Australia have fluttered out before they even began. It’s possible our specific copyright legislation would make any local lawsuit meaningless in any case: Speculation exists that local fines would be drastically reduced, compared with the huge sums rights holders have won in the US in these kinds of mass lawsuits.
Would suing thousands of Australian Internet pirates even be financially worth it? Right now, nobody knows. But the ASA, at least, has historically only gone after local distributors, rather than end users.
What Gane fails to acknowledge in his article — or, what his self-delusion will not allow him to acknowledge — is that there is only solution to the issue of Internet piracy in Australia, and it does not come down the barrel of a gun or at the hands of a judge in a powdered wig. It is, of course, a commercial solution; the same commercial solution already implemented in the eBook scene by Amazon, in the music scene by Apple and Spotify and in the gaming scene by Valve, Microsoft and Sony.
The reason Australians pirate so many TV shows and films is because they have no other way to get them quickly, affordably, and conveniently. The reasons Australians buy so many eBooks, music albums and games online is because they can do so: Quickly, affordably, and conveniently. To repeat a well-worn argument, Australians would not pirate HBO’s flagship show Game of Thrones if Foxtel hadn’t exclusively locked the show up behind its $50 a month IPTV paywall.
The ironic thing is that this issue has already been solved overseas; especially in the US, where most of the content Australians consume come from. As I wrote when Foxtel director of corporate affairs Bruce Meagher went on the same infantile rant in April that we’ve seen from Gane this week:
“I want to be very clear about one thing: Although we live in an age where consumers are increasingly directly funding the content they want to watch, there will always be a place for middlemen. Every form of content — be it video games, books, films, TV shows or music — requires a distribution channel of some kind. Most of us are pretty definitely locked in to at least half a dozen of those distribution channels already, feeding them money continually to they can service our limitless junkie desire for new material to satiate our engorged brains.
The problem I have with Foxtel is not that it’s a middleman. The problem I and many other people have with Foxtel is that it’s a shitty middleman. It has consciously designed all of its platforms to be expensive, technically limited, user-unfriendly and to bundle content together in a fashion which very few people actually like or want.
I don’t want middlemen to disappear in Australia’s content landscape. Instead, what I want is better middlemen. I want middlemen like Valve to enter the TV distribution business. I want middlemen such as Netflix, Amazon and Hulu to launch their services in Australia. I would quite happily buy Game of Thrones from any of these companies.
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.”
If Gane would get off his high horse for a second and look at his actual situation, he might realise that the people he is begging Attorney-General George Brandis to help him sue, the people who are accessing the sites he wants shut down, the people whose Internet connections he wants cut off for pirating, are the customers that the ASA’s membership should be courting most.
People download shows such as Game of Thrones for a reason: It is too hard, too expensive and too complicated to get it any other way. If you give them a better option, they’ll pay for it instead, and gladly so. The longer it takes the film and TV industry to realise that, the less likely Australians are to welcome it with open arms when it finally embraces digital distribution. Suing your customers has never been a business model with a long-term future.
Perhaps Gane might like to forward this opinionated article of mine directly to senior bureaucrats in the Attorney-General’s Department as well. But somehow I doubt it ;) Just as I doubt that those bureaucrats would listen to the reason which so many Australian technology commentators are trying to forward their way.