08 Aug Valid argument on a futile battlefield
Since the passing of the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) (the ‘Metadata Act’) on 26 March 2015, the battle moves forward, the digital owners of copyright interests are the Generals, while the Cabinet are the Monarchs sitting in an ivory tower. The Generals are doing their best to battle pirates, the only way they can.
Village Roadshow and Foxtel are the leaders in separate Federal Court actions which seek to block websites including ‘The Pirate Bay’ and ‘SolarMovie’. The Pirate Bay facilitates the piracy of digital content which has copyright protection. The primary respondents in the court action are Telstra and TPG, along with Australia’s other internet service providers.
‘Torrenting’ is a form of peer-to-peer file-sharing where users upload and download parts of a file directly from each other. Many Australians are using piracy websites to download torrents, using a VPN which adopts a foreign IP address and therefore cannot be traced back to them (see below for definitions).
People are effectively circumventing the legal outlets for document downloads and streaming, therefore reducing the revenues of the production companies, which trickles down to the artists who are creating the entertainment. The term ‘starving artist’ has never been so apt, and leaner times are ahead unless a different approach is taken.
The effect of the Metadata Act is to ‘keep our community safe’ by requiring the telecommunications industry to retain a limited set of metadata for two years.
Amendments to the Copyright Act 1968 (Cth) and the interpretation of section 313 of the Telecommunications Act 1997 (Cth) lie at the heart of the latest Federal Court actions.
Foxtel and other digital rights holders are trying to block Australians from being able to access the URL of websites which are facilitating the piracy of intellectual property.
The importance of the proceedings is understood by all parties involved, and careful decision making must be exercised considering the precedent-setting nature of the action.
The legislation surrounding this problem is new, however this type of piracy has been going on for many years, with years of refinement of how best to jump through the various loopholes. The law is about a decade behind and trying to catch up.
It is the belief of the online community that blocking these websites will be largely ineffective. Most people are already using a VPN, setting up proxies, relaying their downloads around the world, effectively laundering their IP address so that they can get their latest fix of their favourite show, just released in the USA.
The consumers are impatient, demanding immediate satisfaction. There is not a decrease in demand for these creative products; in fact people are screaming out for more.
WHAT IS DRIVING PEOPLE TO BREAK THE LAW
A major problem in the digital environment in Australia stems from the variety and availability of the products. Social media has connected Australia with nearly every pocket of the word. This has developed over the last ten years and has completely changed the game.
When a new television series is aired in the USA, Australians know about it immediately. Online media as a marketing tool is creating frenzied excitement for television shows. After weeks of hype, there is a release in America and the American public is satisfied.
Unfortunately in Australia, the tension remains. This hype and craze which is encourage and induced by the publicist and productions company’s causes everyday law abiding citizens to steal something. No doubt the guilt begins to eat away, but before they can understand the gravity of their actions, the hype builds for next week, a shadow passes over their eyes and they do it again.
The love of the arts combined with the twentieth century distribution methods are turning a generation of art enthusiasts into sociopaths.
Another major problem in the Australian market is the affordability of these new online products. Generally, there is only one service provider who offers each product in the specific field. True, in the past, if it was not on television and a person could not afford it, then it was much harder to steal the product.
HBO has been employing creative techniques to reduce the piracy of their phenomenon, Game of Thrones (‘GoT’). GoT is the most pirated television show of all time. Releasing the show simultaneously around the globe is one strategy used to stop the flow of illegal downloads.
Foxtel, who has a monopoly over GoT in Australia, reduced the cost for a three month subscription to allow people to view the entire series of GoT for a discount.
However creative releasing techniques and the threat of legal action have not yet deterred the Australian public. More Australians illegally downloaded the season 6 premiere of GoT in the first eight hours in which it was released than any other nation.
This is in fact a smaller number than the season 5 premiere. The reason this number is smaller could have a number of explanations.
One being the fact that people are using VPN’s in order to avoid sanction. Another reason may be that the laws being passed over the last 18 months are having their intended effect.
WHAT THE PIRATES ARE DOING
It is important that these companies are engaging the legal battle. However content providers should be employing more non legal approaches to battle piracy.
Why not try a little creativity and innovation? Take a leaf out of the enemy’s book instead of fighting frivolous legal battles with no way to recover all the costs from the dungeon master, computer hacker who is relaying his identity all the way to Jupiter before being traced back to his mother’s basement , which is impossible to locate, and then probably does not even exist.
The infamous Pirate Bay has recently launched a streaming service. What is more, they offer a selection of affordable VPN’s that the consumer can purchase for far less than they would actually pay for a legal subscription.
These pirate websites are listening to the consumers and offering champagne with the caviar. Pirate Bay is continually reinventing itself in spite of the constant attack.
Instead of the content providers punishing people and forcing them to use the current out of date services they offer, they should try to learn a little from the piracy websites by adapting, listening and offering the goods and services that the population is screaming for, on time and affordably.
It is likely that the digital content owners will succeed in the latest actions. What still needs to be determined is how the blocking of websites will be implemented.
The plaintiffs in the actions have used the same argument made in the UK, claiming that blocking the websites will be a simple task for the respondents considering they already have the systems in place to block access to child pornography sites. Therefore, in line with the legislation, they would only have to take ‘reasonable steps’ to disable access to piracy websites.
“The respondents already have a well-developed and often-used system for site blocking for the purposes of responding to requests from law enforcement in Australia,” Village Roadshow wrote in its statement of claim.
Telstra, Optus, TPG and M2 believe the most appropriate method would be DNS-level blocking.
Justice Nicholas has asked the parties involved to negotiate how best to implement the laws, and set down 6 May 2016 for the parties to return to court.
This defence against pirates is literally a joke amongst the online community as people are already two or three steps ahead of the action. The law is so far behind recent technological improvements that it makes it look archaic.
It may be the case that VPN providers would actually be hoping that these laws get stricter, just as the underworld desires tighter drug laws. If everything is restricted, it pushes more and more people to engage in illegal activities and use the products and services from the criminals selling them. Take it out of their hands.
Proceedings will continue on 6 May 2016.
Torrent – a digital file which contains metadata, which links participants to a system of others who actually hold the file. These peers are then allowed to share the file amongst each other in this online community.
VPN – A virtual private network is a technology that creates an encrypted connection over a less secure network. The benefit of using a VPN is that it ensures the appropriate level of security to the connected systems when the underlying network infrastructure alone cannot provide it.
IP Address – a unique string of numbers separated by full stops that identifies each computer using the Internet Protocol to communicate over a network.