Opinion: Copyright or copy wrong

The wash-up of the iiNet case reveals conflicting legal and moral views about copyright and ISP liability, writes David Havyatt.

The judgment in the appeal of Roadshow vs iiNet in the Federal Court has triggered a further round of activity to address alleged piracy on internet networks. 

The content rights holders are reported to be seeking new and constructive engagement, while iiNet itself has released a discussion paper offering its own solutions to the problem.  

Reasoned legal commentary suggests “copyright dependent industries now have guidance on how to give ISPs notices that will require ISPs to take reasonable steps to limit the notified infringing activity”. The IT press took that as householders faced disconnection or suspension “from the internet if they pirate films or music online.”

Ultimately what is at issue is different views of what constitutes property and the individual moral obligation is to ensure laws aren’t broken.

Rights holders base a lot of anti-piracy campaigns on the principle that copyright infringement is theft, and that the whole of society has a responsibility to protect property. 

In the case of physical property, dealers in second hand goods have specific requirements to record the identity of people who sell them goods. It’s in the store owner’s interests because they can be found in receipt of stolen goods if they don’t follow the rules.

Society appears to think differently when it comes to protecting intellectual property. A different values system seems to come into play.

Exploring the differences

Perhaps one reason for that difference is that we all have physical property we want protected, but not all of us have (commercially valuable) intellectual property.

Another reason could be that copyright is no longer viewed as a protection for creative individuals but for the money men and corporations in between - a view compounded by the way that the length of copyright has been extended.  (These are sometimes called Mickey Mouse rules as they seem to come around every time the copyright in Mickey Mouse is about to expire).

A third potential reason is a belief amongst members of the online community in the co-operative creation of goods.  The view is that the Internet itself is evidence of the beauty of non-proprietary intellectual property creation, but it passes over the fact that most of the early work was actually government-funded as military capability (a survivable network) and tools for academics (the purpose of the web). 

Most of the Internet’s content is proprietary.  Wikipedia remains the exception, not the rule. And user-generated content on social networking sites has a place, but is not mainstream. Success from a video on YouTube is still measured in terms of getting a contract to make movies or record music. 

A final view is that the copyright holders bring it on themselves by not making their content available on-line in a legitimate way.  This line is deployed in the iiNet paper which criticises the “window” model of movie rights.  This sees a cinema release followed by a DVD, then later subscription TV and lastly free-to-air TV.  

People want the content online and, so the argument goes, will keep getting it illegally till they can get it legally. It is claimed the rights holders need to come up with different business models and implies they don’t know how to maximise their own returns. 

The window system works just like the process of book publishers who release a hardcover or large format paperback first, and only later offer a cheaper alternative. It is a form of price discrimination that actually works in the long run to increase the number of people who can buy the book. The higher prices for the initial release mean the paperback can be cheaper than it would otherwise have been. 

The book model has shown some change with e-books.  Movies might do the same when broadband speeds are such that high-definition content can be streamed rather than downloaded.

A moral question

Even if the rights holders’ line is accepted - that there is a “theft” of intellectual property taking place and that only rights holders are entitled to decide how they distribute content - the question remains: How much responsibility should internet service providers bear in relation to that “theft”?

Legally this is the question of “authorisation”, but what is the moral as opposed to the legal issue?  Here the discussion often degenerates into a series of analogies.  For example, if I lend you my gun and you shoot someone, how liable am I?  Does it change if I’m told that you intend to kill someone before I lend you the gun? 

The ISPs say that the messages they are bombarded with asserting illegal activity aren’t sufficient to take any action. The rights holders paraphrase that position by saying ISPs won’t take action under any circumstances.

iiNet’s discussion paper suggests it is time for new thinking to change that dialogue. That is a good step. ISPs do need to show that they are prepared to act to ensure their services aren’t used for illegal purposes.

But the paper also claims that disconnecting an offending user from the internet isn’t appropriate because the account holder can’t be responsible for all the things the service is used for.
The correct response to that is “why not?” After all it is what every contract for internet service says.  It also forms one basis for rejection of filtering, which is that users should be free to see what they want and to otherwise control access to their service. 

There is much to be done before there is an enduring solution to internet piracy. It is not as simple as rights holders needing new business models or just tightening the disconnection rules. 

We need to begin by acknowledging the property right but also recognising that the right has become too extreme. ISPs need to acknowledge their responsibility to ensure their services aren’t used for illegal purposes.

Everyone needs to accept the need to work together.

What is our moral responsibility to protect property rights of all kinds? Have your say below.