As Australian downloaders queue up the latest episode of Game of Thrones tonight, HBO is issuing thousands of copyright infringement notices, urging alleged copyright infringers to pay for the mediaeval epic — the most pirated show in history. This is the largest attempt to crack down on online piracy since the Dallas Buyers Club owners initiated a claim against iiNet to obtain the details of 4726 IP addresses used to download illegally and share copies of the film through BitTorrent.
HBO’s actions put piracy back in the spotlight and now raise questions about Australia’s capacity to cope with what is considered a modern-day scourge. The ensuing debate around piracy isn’t new; we’ve seen rights-holders mount the same arguments against recorded music, the photocopier and the VCR. But rights holders are misguidedly trying to address a business problem with a legal solution.
To properly address this issue, we first need to understand why people pirate media content.
People typically infringe copyright when content is unavailable in their region, or available at a price they are not willing to pay. For streaming movie and TV, Australians pay a premium price for less choice, and in some instances, 400% more than US and UK viewers.
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Rights holders respond and incorrectly characterise illegal downloading as “theft”. Characterising piratical behaviour as “theft” assumes a zero-sum game wherein what the consumer gains, the rights holder loses. But who can say whether these particular consumers would have paid the purchase price originally? And if not, has the rights holder really lost anything?
It is also increasingly difficult to persuade viewers of piracy’s ills when Game of Thrones director David Petrarca admitted that piracy isn’t a bad thing. It may do “more good than harm” as it contributes to generating a cultural buzz that the show depends on.
Irrespective of where you stand on this issue, it’s ultimately a commercial question. If rights holders pursue litigation as their primary strategy, they run the risk of hurting their future business by alienating themselves from viewers. The smarter approach is to recognise that the most profitable solution requires a more innovative business model, rather than biting the hand that feeds you.
Another thing to recognise is that the internet has changed how people access content and Australia’s distribution model has yet to adapt. Foxtel dominates the market for pay TV and operates through an outdated business model that fails to account for changes in consumer habits. The law can’t prevent the ordinary operation of product cycles. Nor can the law make it an offence for consumers not to purchase a particular product, like a DVD.
In 2014, then-communications minister Malcolm Turnbull expressed support that rights holders should focus on making content available to consumers. He went on to say that the minute Game of Thrones aired, it would be “available globally”. Waiting for content isn’t an option; after its release, viewers will go on Twitter, Facebook and Snapchat and write responses to the episode. Rights holders would then benefit from releasing content simultaneously on pay TV, the iTunes store or other platforms.
It took 12 months to resolve a preliminary discovery application involving Dallas Buyers Club and iiNet. Dallas Buyers Club ultimately abandoned the matter in an anticlimactic end. Presumably basing their decision on the cost-effectiveness of administering 4,726 letters for a comparably lesser compensation than first sought.
Rather than filing a lawsuit, the appropriate response to piracy should be to change pricing and business models to reflect new consumer habits and defeat services in the marketplace. Attempting to sue streaming services out of existence isn’t feasible; neither is threatening legal action against fans trying to access content. A simpler and more effective solution is to offer a better service.
Consumers now have a reasonable expectation that they can access content on demand and free. Why? Because every other industry provides information for free, irrespective of location and device — this includes lawyers, journalists, brokers and artists.
Alternatively, they offer their services through a “freemium” model whereby consumers only pay for the premium offering. Businesses using these platforms empower copyright holders to monetise a larger audience than ever thought possible, such as Swedish startup Spotify. The music-streaming service has 15 million paying users and another 45 million who listen to its free, ad-supported service. Spotify typically charges listeners $11.99 monthly for premium ad-free access to more than 30 million songs. Listeners can also curate and share their playlists — providing greater exposure to little-known artists.
Australians circumventing geoblocking restrictions to access Netflix indicate a willingness to pay providers and development for content; it’s just not through the channel that exclusive licensees want.
In short, we’ve all seen this episode before: rights holders defend their outdated business model against new technology; legislators yield to the interests of powerful rights holders at the expense of consumers; rights holders eventually adapt and profit from a revised business model. If we could fast-forward before season seven, that would be great.