Online piracy crackdown won't change a thing

Attorney-General George Brandis might be better served by taking a more measured approach to stemming online piracy because rushing headlong into the breach, at the behest of media multinationals, is more likely to antagonise the very people he needs to work with -- the internet service providers (ISPs) and, more importantly, the Australian public -- to find a viable solution.

With proposals to crack down on illegal downloads reportedly set to be tabled by cabinet this week, the overwhelming intent seems to be one of forcing ISPs to effectively police the internet.

Does the Coalition really need this extra headache given the budget-related opprobrium expected to head its way in a week’s time?

The media lobby has understandably invested substantial effort to keep online pirates at bay and the arguments presented aren’t necessarily novel. Ironically, while the technology underpinning online piracy continues to evolve the media companies seem to be whistling a familiar tune: piracy is killing the future of content makers and copyright holders.

Piracy is bad for business, there’s no denying that, but punishing consumers and more importantly making ISPs the ones dishing out the punishment is unlikely to serve the purpose.

The government’s aspiration to return to a retrogressive model -- the efficacy of which is debatable -- further highlights a failure to understand the pricing and access inequity in Australia that drives such behaviour.

Australian consumers are on the short end of the stick when it comes to digital goods. We're paying 50 per cent more for software and music, and 84 per cent more for games. At the same time legitimate access to streaming services remains limited and those that are available are still perceived to be too expensive.

Queensland University of Technology’s Dr Nicolas Suzor says Game of Thrones is an excellent example of why so many Australians are more inclined to seek alternatives.

With Foxtel securing an exclusive deal with HBO for the series, Dr Suzor says that a consumer who only wants to watch Game of Thrones (and not other bundled content) must pay $74 a month, with a minimum subscription term of six months, to watch it on Foxtel cable television, or subscribe to Foxtel Play for $50 a month.

“Foxtel executive Bruce Meagher calls this 'an argument at the margins about a few dollars', but this shows how out of touch both US and Australian copyright industries are with the Australian consumer,” Dr Suzor says.

This so-called argument may be about a few dollars, but every cent counts. Consumers are actually willing to pay for legal content, even when illegal options are available, provided  that the content is at fair price and convenient.

The fact that online privacy continues to thrive would suggest that the price is too high and while there will always a segment of the population that will try to pirate content the solution sought by the government and media companies shouldn’t be predicated to tackle a minority of rogue users but rather address the real problem.

One potential measure could be to revisit the IT Pricing Review findings from last year, suggests Swinburne University of Technology research fellow Angela Daly.

According to Daly, the review has clearly identified the cause of IP rights abuses in Australia: exorbitant prices for content and software, delayed release dates and limited content channels are providing poor customer outcomes.

“If a compromise must be reached, then the media groups should also have to give something in return for more invasive copyright enforcement, which could be better access to their content -- quicker, at reasonable prices, more convenience for consumers,” Daly says.

The approach the ISPs choose to take on the issue will be interesting. Perth-based iiNet, which has engaged in a running battle with the Hollywood heavyweights since 2010, has put its cards very clearly on the table. As far as iiNet is concerned, it won’t be doing the police work for the media companies. But ISPs may find it difficult to take cover behind the Telecommunications Act and the Copyright Act for much longer.

But despite iiNet’s fierce resistance it won’t take much for the government to get them to play ball, says RMIT’s Vincent O’Donnell.

“It would only require a simple act of parliament along the lines of the US Digital Millennium Copyright Act to force the ISPs to take action.”

The ISPs and the media multinationals have had the ear of successive governments for quite some time and the current rush to go straight to cabinet with copyright proposals once gain leaves the primary stakeholder -- the customer -- out in the cold.

Just how those prospective cabinet discussions will pan out is anyone’s guess but it would be astounding if those making the laws are unaware of the dubious usefulness of graduated response schemes and net filters. Both policy options are unwieldy, controversial and, according to Australian National University's Dr Matthew Rimmer, could have unintended consequences.

Dr Rimmer says that copyright trolls could well abuse new remedies if they are not carefully crafted and without proper evaluation any new copyright enforcement measures will essentially be a stab in the dark.