Online piracy crackdown barks up the wrong tree

The Coalition’s discussion paper on curbing online piracy, which is yet to see the light of day, is the latest example of how rhetoric continues to trump common sense in this ongoing debate.

Rather than play the role of an impartial arbiter and get all the relevant parties -- content makers, rights holders, the internet service providers and consumer groups -- to work together on a viable outcome, the government seems hell-bent on siding with the rights holders, even if that means the average citizen ends up paying the price.

Paying the right price -- or what’s deemed to be the right price -- lies at the heart of the issue, which has otherwise been wrapped up in a simplistic ‘Us vs Them’ mentality. The rights holders are always the aggrieved party; those of us sourcing out content through alternative channels are always the nefarious thieves; and ISPs are the agents of transmission who have deliberately turned a blind eye to the problem.

If only you could wrap this thing up in neat little bows -- it would certainly make Attorney-General George Brandis’ life a whole lot easier.

But the truth is, as always, complicated and while rights holders have very valid concerns about the impact of piracy, it’s equally important to acknowledge that Australian consumers continue to pay more for movie downloads, games and television series.

Without addressing this causal link, there’s very little any proposed legislation can achieve. Last year the federal government’s inquiry into IT price gouging found that Australians pay anywhere between 50 to 100 per cent more for IT-related goods than their overseas counterparts. The committee said at the time that it struggled to see an empirical reason for the mark-up, vindicating the idea of an “Australia Tax” on IT goods.

“Particularly when it comes to digitally delivered content, the committee concluded that many IT products are more expensive in Australia because of regional pricing strategies implemented by major vendors and copyright holders,” Labor MP and committee chair Nick Champion said in the preliminary pages of the report.

A year on, the dial is still stuck on the same frequency and the Coalition’s discussion paper on copyright reform makes almost no mention of the issues highlighted in the inquiry. In fact, consumers get very short shrift in the discussion paper; instead the emphasis is squarely directed at ISPs and making them the gatekeepers.

Undoing iiTrial

Just how serious the Coalition government is about delivering a viable solution to the online piracy problem remains to be seen, but turning back the clock on iiNet’s victory over Hollywood studios is definitely on the agenda.

The High Court’s ruling in favour of iiNet in 2010 has been a festering sore for the content industry. Central to the movie studios' court case in Roadshow Films Pty Ltd v iiNet Ltd was that by providing the means for copyright infringement, iiNet was 'authorising' it. The High Court thought otherwise, ruling that holding ISPs responsible for copyright piracy conducted by their customers was a stretch.

However, finding a means to make the ISPs liable is exactly what the discussion paper proposes to do and that’s going to be easier said than done. The telecom industry is already facing the prospect of egregious compliance costs that mandatory data retention could end up imposing on it. Add to that the cost component that an extended liability regime will impose on ISPs and the prospect of allowing rights holders to pursue legal action to force ISPs to censor websites... Brandis better get ready to receive some well-aimed brickbats from the telcos.

It’s important to remember that this isn’t a Liberal vs Labor issue; in fact, former communications minister Stephen Conroy wasn’t exactly pleased about iiNet’s win in 2010, showing plenty of sympathy for the studios throughout the case.

This misplaced sympathy from Canberra is seemingly alive and well, much to the misfortune of the Australian consumer.