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Feb 21, 2014

The Coalition's looming push for a well-ordered internet

The federal government appears to be preparing a major push against internet freedoms using the justifications of copyright and cyberbullying.

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A week ago Attorney-General George Brandis rose at an Australian Digital Alliance forum to discuss copyright reform in the wake of the release of the Australian Law Reform Commission’s copyright review. He began by quoting Thomas Macaulay speaking in the House of Commons on copyright in 1841. “It was, I believe, the first occasion that copyright law had been debated by the House of Commons,” the Attorney-General said.

Whatever his merits as a lawyer, Brandis is a dud historian. Copyright was often debated in the House of Commons long before 1841, most notably for the Copyright Act of 1709. In fact, the history of English governments trying to regulate what would eventually be termed copyright goes back to the 16th century, when an industry group called the Stationers’ Company convinced the murderous regime of Queen Mary to let it have a monopoly on printing books, in order to better enable the Crown to stifle Protestant dissent.

That system of censorship enabled the Stationers to block competition for its members from the middle of the 16th century to the end of the 17th. And when their monopoly came under threat, the Stationers argued in a submission to Parliament that unfettered printing was a “dangerous innovation”, like a “field overpestered with too much stock”, and that the “public good of the state” was linked to the “private prosperity of the Stationers’ Company”; what England needed was not printing but “well-ordered printing”.

Sound familiar? Perhaps the reason Brandis rewrote copyright legal history is because it shows that content and copyright regulation has always been linked to political censorship and anti-competitive practices. Nothing has changed in 450 years. Content producers still advocate anti-competitive practices and censorship in submissions to governments aimed at protecting their revenue.

In discussing the ALRC report, Brandis dismissed its most important recommendation about the adoption of a “fair use” exception in Australia, which is opposed by the copyright industry. “I remain to be persuaded,” Brandis said of the ALRC recommendation, but generously allowed that he would “bring an open and inquiring mind to the debate”.

However it wasn’t fair use or the rest of the report that Brandis especially wanted to discuss, but piracy, a topic barely mentioned by the ALRC. Piracy was theft, Brandis insisted, but to get us enthused by this rather standard copyright industry message, he went patriotic. “The illegal downloading of Australian films online is a form of theft,” he said, citing The Great Gatsby, as though a US film with US stars based on one of the great American novels counted as Australian.

Brandis explained that he disliked the High Court’s iiNet decision from 2012, and was looking at:

“… considering possible mechanisms to provide a ‘legal incentive’ for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks. This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.”

Alternatively, Brandis is considering providing “the Federal Court with explicit powers to provide for third-party injunctions against ISPs, which will ultimately require ISPs to ‘take down’ websites hosting infringing content”.

“It is very possible that it regards the internet … as a threat to be attacked with whatever tools are available.”

Putting aside that (a) there is considerable evidence “piracy” doesn’t cost the copyright cartel revenue e.g. here; (b) graduated warnings haven’t worked anywhere; and (c) many censorship measures would be trivially easy to bypass, the copyright industry has long sought to outsource the burden of stopping file sharing from companies to governments, courts and ISPs, so that taxpayers and consumers end up paying the cost of doing for the content industry what less influential industries have to pay for themselves: protecting their assets.

All along, of course, the key to massively reducing piracy — providing content where, how and when consumers want it, at a reasonable price, rather than gouging and exploiting them — has rested with the copyright cartel.

Not coincidentally, 21st Century Fox, the healthy and successful arm of Rupert Murdoch’s empire (as opposed to the dead newspaper company walking, News Corp), is a strong supporter of government moves to crack down on piracy.

Turning ISPs into an enforcement arm of the copyright cartel will not only cost ISPs a great deal — something Brandis acknowledged as an issue — but requires them to monitor every customer’s internet usage for downloading of copyrighted content or use of file sharing networks, as well as censor websites targeted by the copyright industry. Perhaps the IT Keystone Cops from the Australian Securities and Investments Commission can help with that.

While Brandis prepares the way for a de facto internet surveillance and censorship regime, Communications Minister Malcolm Turnbull’s parliamentary secretary, Paul Fletcher, has been “consulting” on the government’s other internet censorship proposal, under which a “children’s e-safety commissioner” would have a legislated power to demand social media and other internet companies take down content deemed offensive. The plan is initially intended at material aimed at harming children, but when last in government the Coalition also prohibited online gambling and banned online discussion of euthanasia.

During the week the government used The Australian (which is itself engaged in a permanent “old man yells at cloud” campaign against social media) to bolster its case, under the heroic headline “Tony Abbott stands up to cyber giants on bullying“.

This all coincides with an increasingly aggressive stand by the government against scrutiny. The ABC has been repeatedly attacked for stories that embarrass the government; a number of politicians from the Prime Minister down have, without evidence, smeared whistleblower Edward Snowden as a traitor who has placed Australian lives in danger; Brandis dispatched the Australian Security Intelligence Organisation to raid a whistleblower and a lawyer after revelations Australian intelligence services had bugged the East Timorese cabinet. The more paranoid among us might even add in Australian Federal Police raid on the Seven Network this week.

Together, these all form part of what looks increasingly like a concerted attack on the internet from a government closely allied with corporate interests whose analog-era business models have been undermined by the internet, like Rupert Murdoch, and composed almost entirely of men with minimal understanding of how Australians use the internet to connect with each other, form communities and share information. Indeed, this is a government that has persistently shown itself to be hostile to the very concept of sharing information.

It is very possible that it regards the internet, which is fundamentally about more rapid, easier and resilient information-sharing, as a threat to be attacked with whatever tools are available.

Bernard Keane — Politics Editor

Bernard Keane

Politics Editor

Bernard Keane is Crikey’s political editor. Before that he was Crikey’s Canberra press gallery correspondent, covering politics, national security and economics.

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34 thoughts on “The Coalition’s looming push for a well-ordered internet

  1. Daniel Davids

    “Together, these all form part of what looks increasingly like a concerted attack on the internet from a government closely allied with corporate interests whose analog-era business models have been undermined by the internet, like Rupert Murdoch…”
    Indeed. Now throw into the mix the Foxtel deal for the rights to Game of Thrones and the subsequent decision to wait until after the program had aired in the USA to screen it here. This deal is financial suicide on a number of fronts. It is already the most downloaded show in Australia and no sane programmer would even contemplate doing what Foxtel has done. In short they’re begging to have their content ‘stolen’ and that, I believe, is the point. Foxtel will be able to claim massive damage as viewers will have downloaded the show to keep up with the US. Foxtel will be able to point to predictably negligible growth in their their subscriptions and compare that with a predictably high number of downloads and, thus, quantify its loss in dollar terms. Given the already sympathetic mood of the Federal Government and the ‘significant damage’ that will be shown by Foxtel Blind Freddy can see the clampdown coming on the internet and the issue of copyright “theft” (which is the statement that calls into question Brandis’s merits as a lawyer).
    As much as it hurts I’d like to see a publicity campaign advising Australians not to download the show… its the only way I can see that this cunning plan being thwarted. But, I fear, given the AG’s statements so far this may not be enough to prevent the Liberals doing a huge favour for their mates.

  2. Brendan Jones

    The US Supreme Court (SCOTUS) has a long and rich history of arguing the merits of free speech. They have found that although free speech has its problems, not having it has more:

    Anonymity is the only way for the public to criticise powerful people without being singled out for punishment. Ending anonymity on the internet is dangerous, because it curtails free speech. Yes, banning anonymity would (in theory) end trolling, but your ability to criticise the government would be greatly curtailed. Ben Franklin said “They who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

    (Why am I quoting an American to you? According to Lord “Absolute Power corrupts Absolutely” Action: “The great novelty of the American Constitution was that it imposed checks on the representatives of the people.” Something we don’t have here.)

    Consider that public servant Michaela Banerji was sacked for anonymously twittering criticism of the government as @LaLegale. * Public servants are allowed to criticise the government in the US, but not in Australia. So consider anyone of you who have ever posted a comment critical of the government – anonymously or not – on Crikey or any other web site – even a supposedly private one – have just disqualified yourselves from ever holding a public service job. http://victimsofdsto.com/psc/#fail_freespeech

    Likewise if you’ve posted comments that “encourage disaffection” towards the Australian government or Parliament you can be jailed for seven years. So you’ve already broken the law. They just haven’t picked you for it yet: https://en.wikipedia.org/wiki/Australian_sedition_law#Seditious_Intention_2

    SCOTUS Justice Stevens quote on the need for anonymous speech: “Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.”

    The McIntyre v. Ohio Elections Commission ruling: The importance of anonymous speech: In striking down the law, the court considered some important reasons to allow anonymous speech that weighed in their decision.
    1) Enhance authority – “Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.”
    2) Encourage open discourse – “The interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.”
    3) Safety from retaliation – “The decision in favor of anonymity may be motivated by fear of economic of official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.””
    https://en.wikipedia.org/wiki/McIntyre_v._Ohio_Elections_Commission + http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=514&page=334

    SCOTUS ruled the Ohio law banning anonymity was unconstitutional. Closer to home Roxon was partially successful; After an outcry she promised not to do it, then two weeks later snuck through a lite version. http://victimsofdsto.com/online/#_Toc354561156 + Also http://powerhouse.theglobalmail.org/the-australian-government-snoop-patrol-once-every-two-minutes-247-anyones-data/

    * = BTW LaLegale can’t afford to take her case to the High Court, and it turns out Australia’s so-called Human Rights lawyers who are so vigorously defending biker’s freedom of association have no interest in defending LaLegale’s freedom of speech.

    As for protecting IP rights, the AFP (and the ACLEI who purport to oversee them) are still sitting on this crime report regarding the government’s own DSTO: http://www.crikey.com.au/2013/12/02/revealed-the-government-agency-stealing-ideas-from-businesses

    Yet the AFP was so quick to raid Channel 7’s offices on false grounds. Seven commercial director Bruce McWilliam asked: “Since the AFP said that neither our solicitor nor Seven is suspected of a criminal offence and since they also said Seven was co-operating with the production orders, what was the actual reason that justified the AFP saying it needed a search warrant?” http://www.smh.com.au/business/seven-demands-action-from-attorneygeneral-george-brandis-over-federal-police-raid-20140223-33ahi.html Perhaps the AFP wanted to know what Channel 7 had on them? http://thestringer.com.au/schapelle-corby-is-innocent-part-9-the-abominable-silence/?doing_wp_cron=1393061227.7502861022949218750000

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