Destined to repeat past copyright mistakes

For a government that has promised to make life easier for business, the Coalition seems hell-bent on repeating other governments' inefficient policies that have done little beyond pushing up costs through complex regulation.

And that is exactly what Attorney-General George Brandis’ proposal to require internet providers to block websites and introduce a graduated-response system warning for file sharers will do.

Other countries that have tried site blocking and three-strike systems have found such measures are a burden on providers, snare innocent people and are not compatible with the internet era.

The problem with Brandis’ notion of Stop the Torrents is that all content on the internet is copied, often multiple times, before reaching its final destination.

That’s how the internet works: it is the biggest network of networks, full of copying machines, and it’s getting larger by the day.

It is astounding that the internet's fundamental principle of operation is being papered over, with legal minds and politicians pretending we’re still dealing with a broadcast medium.

Copyright itself was devised as a response to the technological advance of printing presses that changed everything for the content creators of the day.

The internet kicked up the technological advancement several notches, and copyright needs to adapt accordingly.

Brandis couldn’t be more wrong when he says the principles of copyright did not change with the invention of the internet.

Three strikes is out

The old notion of copyright is very much the square peg in the round internet hole, and no amount of hammering is going to make it fit in.

There are plenty of failed overseas examples the government can study when considering its own approach.

France has had a three-strikes anti-file sharing system since 2009, codified as the HADOPI law. It criminalises file sharing and penalises those involved with fines and internet suspension.

Did HADOPI deter French file sharers? Not according to a recent study.

The new French government agreed and last year, took a hard look at HADOPI and killed the administrative agency responsible for it, which was costing millions a year to run with very little to show for it.

Closer to home, Monash University Faculty of Law researcher Rebecca Giblin came to a similar conclusion - three-strikes regimes are ineffective. 

Elsewhere, since 2011, British courts have blocked several file sharing, streaming, search engine sites and even a DNS provider to prevent copyright infringement.

As of writing, 38 sites including the notorious torrent indexer The Pirate Bay are blocked in the UK. 

Unfortunately for the British courts, it is very simple to bypass the blocks, and research shows again that the measure isn't very effective.

It’s the law

Enforcing graduated response systems and associated penalties requires byzantine processes that leave alleged infringers helpless while not providing the desired deterrent against file sharing.

Across the ditch, the two recent New Zealand Labour and National governments went a long way to accommodate rights holders when they drafted an amended copyright act that introduced a three-strikes regime.

The NZ system introduced features that go against traditional law - such as guilt upon accusation and holding the internet account holder responsible for infringement rather than the actual downloader - but much to rights holders’ chagrin, the Kiwis did not ditch all due process.

The onus is on the rights holders and their agents to apply, through the Copyright Tribunal, for monetary penalties from infringing users. 

As a result, only a few three-strike cases have been brought before the tribunal.

While rights holders were hoping for thousands in compensation, the penalties meted out by the tribunal for downloading and sharing a small number of songs via Bittorrent peer to peer networks have been small, only a few hundred dollars in each case.

Only the music industry has bothered to go through with the NZ three-strikes process; there have not been any cases of movie studios taking file sharers to the tribunal.

Read on for why the current process is too easily open to abuse...

By the power of copyright

“Simplifying” the system by opting to allow rights holders go after file sharers directly with statutory damages rather than using tribunals would be messy as a deterrent, as overseas experience shows.

Jammie Thomas-Rasset has been pursued by Capitol Records since 2005 for the alleged sharing of 24 songs. Over the decade since then, she’s been ordered to pay sums ranging from US$54,000 to US$1.92 million, with scant evidence to support the allegations of file sharing.

Due to the massive penalties sought, Thomas-Rassett’s is the best known of many similar court cases: between 2003 and 2008, the Recording Industry Association of America (RIAA) filed roughly 35,000 court cases against individuals, accusing them of sharing files on peer to peer networks.[pdf]

Copyright as it stands today is a powerful legal device that can be easily abused for purposes that have nothing to do with rights to creative works.

Scientist Myles Power is a good example of this - his videos debunking AIDS deniers were taken down after those he criticised filed bogus Digital Millennium Copyright Act (DMCA) notices with Google and YouTube.

Since he received three DMCA notices, Power’s YouTube account was suspended subject to termination. Bizarre as it seems, copyright was used to silence.

The use of government spy agency surveillance and an ensuing raid by armed police on Megaupload founder Kim Dotcom is a salutary reminder that when it comes to copyright enforcement, all stops are pulled out.

Huge penalties and massive displays of force clearly hasn’t made the piracy problem go away, and the scope for abuse from strict copyright enforcement is a real problem.

Forever (c)

Speaking of principles, it should be apparent to Brandis that rights holders themselves have very little faith in the original concept of copyright.

Copyright is a social contract that grants the creator or inventor (or a licensee) protection and exclusive rights to a work for a limited amount of time.

After copyright expires, the public can use that work – this idea is that everyone benefits; the creator who can make money out of the work and be encouraged to produce more, and later on, the public, who can utilise it for derivative materials.

But the notion that copyright expires has been watered down to almost homeopathic levels over the years. Whereas copyright terms were just a few decades originally, they now reach over a century in the United States and don’t have to be renewed.

Perversely enough, technology makes it easier to extend copyright for as long as anyone likes.

Digital rights management and its associated technological protection measures (that are illegal to remove from content in many markets) do not expire; ditto regional encoding of content so that it can’t be played back everywhere around the world.

Paywalled copyrighted digital content also remains locked away even if it has expired and should be in the public domain.

Why is perpetual copyright not a concern?

Politics plays part

It could be that the government knows all the above but thinks that burdening providers with further costs and complexity in an already low-margin business, along with throwing some of their customers under the bus, is worth it to get another trade deal with the US.

However, the Trans Pacific Partnership - with its many provisions on intellectual property rights enforcement - looks increasingly unlikely to pass through the US Congress and may be dead in the water, as President Obama will not have the fast-track authority needed to conclude the deal.

It is simply not possible to believe that the government and its many advisers are unaware of this.

More carrot, less stick

Making criminals out of large swathes of the population because they want access to content when it is published is an idea that deserves to die with the punitive regimes used to enforce such ineffectual and costly policies.

Why not try something else and accommodate people? Services such as Spotify claim [pdf] that piracy is reduced through availability of legal content.

It won't kill unauthorised file sharing completely, but prioritising better access will save money and cut public and private costs while keeping copyright holders happy - and one hopes, with food on the table.

Exploring that option should come ahead of complex and costly punitive regimes.

Declaration of interest: Juha Saarinen is, as a journalist and writer, a copyright holder.