Copyright events are about as pleasant as medieval dentistry. Too many suits, too many lawyers, too many bad jokes, and rarely anything new gets said. Last night’s Online Copyright Infringement Forum was no exception. The theme of the evening was “Evidence? What evidence?” as this post will demonstrate.

The first thing I noticed was who was on the panel. There was just one content creator, writer/producer Peter Duncan, who remained disturbingly quiet throughout the whole event. The remaining six panelists were representatives of copyright holders (Village Roadshow and APRA/AMCOS), Internet service providers (Telstra and iiNet), broadcasters (Foxtel) and consumer advocates (Choice). As was said later by an audience member later in the event: no one on the panel was representative of new business models (though Will Page of Spotify was in the audience and spoke very briefly).

The event was chaired (or moderated) by the Minister for Communications, Malcolm Turnbull. The Attorney-General, Senator George Brandis, couldn’t attend because apparently he had a cabinet meeting. You would think, as the “Online Copyright Infringement” discussion paper emanated from his department, he would take time off from ruining our country to attend. Interestingly he didn’t attend the last conference I was at either, despite being the keynote speaker. He doesn’t seem good too at conferences. Having said that, when I did hear him speak at a conference I felt like throwing the 400 page Australian Law Reform Commission report at him after he said he remained to be persuaded that Australia should implement a fair use system similar to that of the United States, despite that being what the Commission had recommended.

Of particular frustration to me was hearing BitTorrent traffic being used as an indicator of online copyright infringement. Yes, BitTorrent is likely the most popular means of distributing infringing content and I would say it’s fairly safe to assume peer-to-peer traffic is mostly going to be infringing. But that isn’t the point at all. If you see a reduction in the use of BitTorrent, you are likely to see a significant increase in encrypted traffic as people move towards unmonitored channels. At least that’s what studies indicate. Real studies, not industry studies.

An interesting statistic that was presented is that apparently 27% of Australians are already using virtual private networks (VPNs) to access Netflix (which is still not available in Australia). I’m not sure how they know this, but the Government said it, so let’s pretend it could be true. My question, then, is how many people are going to use VPNs to infringe as usual if any of the proposed “anti-piracy” measures are implemented? The next slide showed significant differences in pricing and release dates between the United States and Australia: there’s limited consistency on either front. The examples showed a wide range of price differences and release dates. I’d like to remind readers that the Government is yet to comment officially on the recommendations of the IT Pricing Inquiry that would, if implemented, substantially reduce the effects of these market failures on copyright infringement.

Graham Burke (Co-CEO, Village Roadshow), gave the standard copyright lobbyist spiel. This is a guy who was initially going to “boycott” the forum “because it would be dominated by ‘crazies’ whose hidden agenda is the ‘theft of movies’,” but then reversed that decision. I wonder if the Minister for Communications promised Burke that Burke himself would be the craziest attendee. At any rate, Burke did admit that Village Roadshow “made one hell of a mistake on LEGO. Holding it [off] for a holiday caused it to be pirated widely.”

It was around this time I started to get really bored. Nothing new had been said, and it didn’t look like anything new would be said. One of the panelists, I honestly can’t remember which, seemed incredulous at the fact that, despite low prices and high availability, popular TV shows get downloaded more frequently. Surprise surprise.

An oddity brought up briefly is the continued claim that there are an increasing number of streaming services available in Australia. That’s all well and good, but what are they? I think this issue is very important. Australians, having been treated as second-class consumers, are now used to accessing content through a variety of unauthorised channels. In terms of pioneering online distribution in Australia, the Pirate Bay beat almost everyone else to it! The longer you stay out of a market, the greater the competition and ingrained consumer loyalty faced when you do eventually enter it. Let’s start advertising these authorised services more widely, shall we?  I think a list exists somewhere, but I can’t find it! (Let me know if you find it, and I’ll be more than happy to link it here).

Eventually the topic moved on to the actual proposals. First up: graduated response. I tweeted my hope that we might actually see some evidence that graduated response (“three strikes”/”notice”) schemes work: so far I’ve been unable to find any studies or articles that are conclusive. As the Minister for Communications summarised: “It’s contentious as to whether any graduated response schemes work. There’s conflicting evidence.” Well, sure. The copyright lobby reports say they do work, while independent reports and peer reviewed articles say they don’t.

David Buckingham (CEO, iiNet) challenged anyone to “point to a notice scheme that works.” According to Buckingham, iiNet’s research revealed nothing confirming graduated response schemes are effective. Graham Burke attempted to argue that South Korea’s does work (hey, one in eight ain’t bad, I guess?), conveniently ignoring the reality that the Korean strategy involves far more than just graduated response and has a strong emphasis on education. This entire discussion was entirely disappointing. However, one of the best quotes relating to graduated response schemes was from Alan Kirkland (CEO, Choice): “Let’s not go with something that maybe works. Let’s go with something that actually works.”

As the topic wore on, the Minister for Communications began a statement, rather bizarrely, with “leaving aside the question of whether graduated response will work …” Hang on. Wait. What? Surely the whole point is whether it will work? Apparently not. The question then became “who would pay for a graduated response scheme?”

It’s probably not surprising that I personally think copyright holders should bear the full cost. This is purely on the basis that since it’s their rights in issue, and it’s a civil matter, they ought to be responsible for enforcing their own rights. Making demands that another industry protects them seems childish. They’re grown ups and can fend for themselves. After all, they’ve never been short of money to fund the apparently unsuccessful anti-infringement strategies. Given the lack of evidence that graduated response will work, ISPs probably shouldn’t be expected to contribute to a strategy that seems likely to be ineffective. As our submission on the “Online Copyright Infringement” discussion paper said: “Expecting the ISPs to pay the costs of another industry’s experiment — both in monetary terms as well as in terms of harm to their own customer relations — is incredibly unfair and unreasonable.” I think in principle that if, after implementing graduated response, we see a decrease in infringement and a matching increase in authorised consumption, then maybe the costs-sharing could be revisited.

Some of the panel attempted to use the “theft” analogy again, taking it way too far. Richard Freudenstein (CEO, Foxtel) argued that the police will investigate the theft of goods from stores. The Minister didn’t seem too keen on a “government pays” model. It then went on and on as the panel started talking about private security companies being hired, and, as I said on Twitter, it was the “most futile analogy ever.” You simply can’t compare copyright infringement to theft because they are so fundamentally different. I like the current way we explain it: “it is an infringement of the exclusive right to copy. It is copyright infringement.” There’s a reason why it isn’t, in legal terms, larceny. Conflating copyright infringement with larceny just causes more confusion than necessary and diverts the discussion away from the key issues, which in this case was, again, the lack of evidence that graduated response schemes will work.

Alan Kirkwood of Choice made a helpful comment that brought things back on track: “There needs to be some evidence base.” It was at this point that Dr Rebecca Giblin was given an opportunity to talk. Dr Giblin is the author of the most comprehensive and peer-reviewed study of graduated response schemes worldwide up to 2013. Her paper was published in the Columbia Journal of Law & the Arts this year, and no one I’ve spoken to knows of a more recent or comparatively thorough paper (though tell us if you do). I was amazed at the rudeness of the absolute morons sitting on my left: when Dr Giblin got up to say, essentially, “I’m disturbed by the lack of evidence being consulted, but here, I have some evidence for you,” they yelled “give it a rest!” Aren’t we meant to be the arrogant vocal minority? Such poor behaviour from the copyright lobby is amusing and only continues to make us look reasonable.

Eventually the discussion moved towards injunctive relief. This is the proposal to allow copyright holders to obtain a court order compelling ISPs to block websites. Again, the consultation of evidence was lacking. Surprisingly, this approach seems to be even less researched than graduated response (though again, happy to be corrected). However, we do have a recent decision from the Hague Court of Appeal that casts enormous doubt on using blockades to reduce infringement. If you’re like me, however, you probably don’t understand Dutch; and unfortunately the Dutch judiciary is not in the habit of having its judgments translated into English. The good news is that I’ve obtained a quote for a certified translation of the judgment into English and on the suggestion of Party President Brendan Molloy, Pirate Party Australia is currently raising the $3,000 necessary to get that done. In the meantime, we’ve got to go from media reports that summarise the case. According to The Guardian’s Samuel Gibbs the Court found that the blockade was ineffective, and that online copyright had actually increased since it was put in place. Just to put this decision into some sort of context: the Hague Court of Appeal sits one tier below the highest court in the Netherlands, which makes it somewhat significant. It may be appealed to the Netherlands’ Supreme Court at some point in the future, so keep your eyes open!

But it appears that Foxtel would rather play the endless game of Whac-A-Mole by blocking infringing websites. Because it’s not like websites can’t just launch under a new URL, or Internet users can’t just use any one of a million proxies that exist to keep accessing the same sites. According to Richard Freudenstein of Foxtel: “if you just keep blocking websites it will eventually stop” (very rough paraphrase). Funnily enough, that’s not what ‘anti-piracy agent’ (his words) James Brandes says. In his article he asks

how many Pirate Bay Proxies/alternative URLs do you think I’ve encountered in the last 4 weeks? 10? 15? 20? The answer is 247 but I’m sure it’s a lot more … [M]y analysis indicates that a massive proportion of the sites found during research are not blocked in the UK.

So is this wack-a-mole [sic] policy working? No. It’s plainly evident that every single time a site is blocked at the ISP level, new URLs take their place. This has further ramifications for content owners and their agents.

For succinctness (and to stay on the right side of the law) I’ve left out the URLs, but Brandes actually lists out quite a few alternative URLs for the Pirate Bay and other torrent websites that weren’t at the time (and probably still aren’t) blocked.

Finally, there were two stand out comments made from the audience, and both for very different reasons. The first of these was from Andrew Pam of Electronic Frontiers Australia. Andrew pointed out that the panel was composed of persons exclusively representative of long-established business models — no one on the panel was an innovator when it came to new business models. He listed a number of more innovative distributors including (a site I personally love) and Humble Bundle (I was actually very surprised at how long his list was). This seemed to baffle the panel. Yes, there are people doing things differently to Village Roadshow, Foxtel and APRA/AMCOS. Why weren’t they invited?

I’m afraid I can’t remember who made the second comment, but if anyone knows please get in touch and I’ll fix this up. They questioned the necessity of copyright, and whether copyright is becoming outdated. This was met with scoffs, especially from the Minister for Communications who immediately asked “so you expect Peter [Duncan] to live on air?!” (or words to that effect). Admittedly, the question of whether copyright, and intellectual property more broadly, remains relevant is often more a philosophical and academic question than a practical one. The Pirate Party shied away from attempting to debate the premise of copyright in significant detail in our submission, mentioning only briefly that copyright is meant to be an incentive for cultural and social development and that aim should not be forgotten.

Nevertheless, it is important that we regularly review, reassess and reform our laws to make sure they’re doing what we need them to do. I say that without any subjective intention: laws change over time, lifting prohibitions and introducing new ones as it is deemed appropriate. If there was a far more equitable system that could replace modern copyright law — equitable for creators, distributors, service providers and consumers — then surely it would be a good idea to implement it? I think it would be good to start from scratch, regardless of whether we stick with copyright or find something totally new. This is mostly because the Copyright Act in Australia has ridiculous section numbers like 135ZZZZA and is technology-specific. I mean, come on: I’m allowed to make a digital copy of a VHS but not rip a DVD to my computer!? No one is suggesting that content creators ought to live on nothing: what people are wondering is whether there is an alternative means of achieving the aims of copyright. We might even need to have a conversation about what we want copyright, or its alternatives, to actually do.

I think the person who benefited most from the forum last night was the Minister for Communications, who was made well aware that his Government’s proposals were inadequate. Whether we’ll see movement towards them anyway, or a massive step back (as the Government did on the proposals to repeal section 18C of the Racial Discrimination Act) is anyone’s guess at the moment. I will say, however, that no matter how much evidence one puts in front of cabinet ministers, political donations always seem to make a bigger, more attractive pile.