Jul 25, 2014

Government flags copyright crackdown to overturn iiNet decision

The government wants to make it easier for the copyright industry to sue ISPs and force them to censor the internet, according to a draft paper about to be circulated.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

The government will rely on flawed copyright industry claims and free trade agreements to justify proposals to overturn the High Court's iiNet decision and develop a new internet censorship regime for internet service providers, a draft discussion paper reveals. The Online Copyright Infringement draft, obtained by Crikey and to be circulated by Attorney-General George Brandis and Communications Minister Malcolm Turnbull, calls for public comment on new measures that would enable the copyright industry to demand that ISPs censor the internet and to remove the legislative hurdles that prevented the copyright industry from successfully suing major ISP iiNet in 2012. The paper seeks comment on amending the Copyright Act to:
  • loosen the "reasonable steps" requirement that protected iiNet from litigation by the copyright industry, so that ISPs can more easily be sued for having "authorised an infringement" of the act;
  • enable the copyright industry to obtain court orders forcing ISPs to censor foreign internet sites the "dominant purpose of which is to infringe copyright"; and
  • extend "safe harbour" provisions of the act to some service providers currently definitionally prevented from accessing them.
The draft also seeks comment on "ongoing monitoring and evaluation" measures for quantifying the volume and impact of copyright infringement. This raises the possibility of measures to monitor internet users' traffic, but importantly the draft doesn't discuss the "graduated response" schemes favoured by the copyright industry, under which ISPs would be required to enforce copyright rules and eventually cut off customers found to be file sharing or downloading copyright material. Such schemes have significant privacy implications and are likely to impose tens of millions of dollars in costs on ISPs -- costs that would need to be passed through as a kind of copyright tax on internet users (which would be in addition to the "surveillance tax" costs of a data retention scheme of the kind currently under "active" consideration by the government). The draft invites comment on the "regulatory costs and savings" associated with proposals outlined. The draft argues that the measures outlined are required by the United States, Singapore and South Korea Free Trade Agreements, but it also relies on demonstrably false copyright industry claims about the size of the industry, and even invokes child harm as a possible consequence of file sharing.
"... Australia’s copyright industries employ 900,000 people and generate economic value of more than $90 billion, including $7 billion in exports. Digitisation means that these industries are particularly susceptible to harm from online copyright infringement with the potential to directly impact on the Australian economy and Australian jobs. Online copyright infringement can hurt consumers as well. Consumers accessing material unlawfully are not covered by consumer protection laws and may be exposing themselves to the risk of fraud and other forms of cybercrime. Further, children may be exposed to material that is not age appropriate."
The draft paper cites a consultant's report commissioned by the copyright industry lobby group Australian Copyright Council. On closer inspection, the report appears highly problematic. It claims the industry generates more economic value added than construction or retailing, and at 900,000 the industry would employ as many Australians as manufacturing. However, those prodigious levels are reached only by the inclusion of industries such as textiles, clothing and footwear, furniture, household goods, electronic equipment manufacturing, paper, advertising agencies and even, as "non-dedicated support", retailing and transport. However, even more peculiar is the argument that copyright infringement is dangerous because Australians "are not covered by consumer protection laws", when two of the chief motivations for Australians to download content is the refusal of providers to allow access to content at all -- whether with "protection" or not -- and their insistence on providing it in timeframes, in formats and at prices consumers don't want. The spectre of kids being harmed is, of course, a staple of internet scare campaigns. The reform proposals would open the way to the copyright industry using Australian courts to shut down not merely piracy sites but any site they could convince judges had a dominant purpose of copyright infringement.

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19 thoughts on “Government flags copyright crackdown to overturn iiNet decision

  1. Brian Williams

    In the same way that Australian internet users quickly worked out how to download and utilise torrents, the implementation of a law based on these draft proposals will simply mean that those very same users will familiarise themselves with the concept of proxy servers and/or usenet in order to get their movie/software fix…..and silly George will not be able to do diddly squat about it.

  2. SusieQ

    Excellent! So ‘old media’ and the laws of other countries that we have entered into free trade agreements with are now telling us what we can and can’t watch?
    I await the day when a government acts on behalf of its citizens and not a whole bunch of vested interests, most of whom do not live or work here – those that do pay little tax, but that doesn’t seem to be a problem worth solving.

  3. Graeski

    This is a government that is for sale to the highest bidder. Their actions are entirely consistent with having been bought and paid for.

  4. Emile Tsalto

    It is strange that after such efforts have failed everywhere (even in France the draconian suppression of downloads did not help sales) that the Coalition wishes to proceed. Obviously evidence-based policy is not the fashion. Are the proposed actions more about political donors?

    Meanwhile the new businesses and industries that could emerge from a proper NBN and free exchange of knowledge, must struggle for traction.

    Is the Coalition only interested in preserving the past? If so, the younger generation will pass its judgement upon them.

  5. Yclept

    And how convenient that the costs will be passed through to internet users. If the cartel wants it why don’t they pay for it? What happened to user pays??? The age of entitlement lives on.

    So Tony is introducing another great big tax…

  6. drsmithy

    In the same way that Australian internet users quickly worked out how to download and utilise torrents, the implementation of a law based on these draft proposals will simply mean that those very same users will familiarise themselves with the concept of proxy servers and/or usenet in order to get their movie/software fix…..and silly George will not be able to do diddly squat about it.

    Actually it’s pretty easy. All they need is to legislate a blacklist of sites where terminating a VPN is automatically considered “piracy” and require ISPs to enforce it.

    Sure, it’s a game of whack-a-mole and other VPN hosts will pop up all the time, but how many “normal” people are going to put up with having to change their VPN setup every other month (to say nothing of money that might be lost when their existing one gets blacklisted) to work around the updated blacklist ?

  7. CML

    I confess to not understanding much about this topic, but would seriously like to ask: does this have anything to do with the coming Trans Pacific Partnership agreement?
    Just curious!

  8. Altakoi

    So everyone has to know how to search annonymously now? What a national training incentive.

  9. Dogs breakfast

    It’s great that companies and big business are so well represented in this parliament,

    a parliament, of the people, by the people, for the people.


    Tony, George, just bend over a bit more, no, a little bit more, yes, that’s good, more, bend, more!!!!!!!!!!!!

    Wrong, on so many levels. This is principally about protecting Murdoch’s outdated business model so that the Australian consume can continue to be fleeced by a former Australian.

    Way to go parliamentarians.

  10. Bob Johnson

    Another kowtowing to Rupert’s instructions to Tony to increase his Foxtel IP monopoly rights and profits.
    Getting wealth from squeezing an overpriced monopoly from a small proportion of Australian customers while restricting the majority of Australian viewers from watching the John Stewart Daily Show and The Colbere Report on Comedy Central, both shows rip shreds off US Fox news ideology rants. Try to log on to either of these shows to see their insulting attitude to the Australian public. I would be happy to pay a fair price but I don’t think Fair is in the LNP equation.
    He could save an easy $30Million a year by closing The Australian.
    The Govt would not lose out either because it’s not even a tax revenue.

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