Australian Media Company CEO Accuses iiNet ISP Of Piracy 'Lies', Says Illegal Filesharing Is Theft

from the elegant-explanations dept

For many years, Techdirt has been covering the dogged efforts of the Australian ISP iiNet to stand up for its users against bullying by the copyright industries. After Hollywood lost its big lawsuit against iiNet back in 2012, things went quiet until recently, when the installation of a new government in Australia has led to years of careful research in the field of copyright being thrown out, and a return to dogma-based policy-making that has no time for the facts.

An interview by Luke Hopewell in Gizmodo Australia with Graham Burke, co-CEO of the Village Roadshow Australia media company, provides further evidence of how Australia is stuck in the past when it comes to copyright. It's striking how it trots out just about every tired and discredited argument in favor of harsher punishment for those allegedly sharing unauthorized files, along with the repeated claim that iiNet is lying:

"What iiNet are saying to govt is 'oh, let's just have everything available at the same time, cinema and everything and the [piracy] problem will go away. They know that's a lie because of the music industry. In June alone there was 1.2 million illegal downloads of music, and that's released at exactly the same time everywhere," Burke said.

Nobody claims that making everything available at the same time will make piracy go away completely. That's partly because the "piracy problem" in Australia as elsewhere is often more a problem of poor service, as this story from TorrentFreak last year makes clear:

News Corp owns 50% of pay television company Foxtel, the outfit with the rights to show Game of Thrones in Australia. At last count during August the company had around 2.5 million subscribers, but despite the show being legally available to them, the News Corp CEO said that 20% of Foxtel customers still chose to watch the show illegally.

This shows that even when they have access to the legal services, a significant number of people turn to illegal downloads, presumably because they are more convenient -- a pretty damning verdict on the state of the commercial offerings. Making everything available immediately won't solve that problem -- only offering well-designed legal services will -- but research shows that easy availability through legal services does cut down the level of illegal filesharing, which is presumably what iiNet is trying to get the Australian government to understand.

Next, Burke comes out with a favorite trope of the copyright maximalists:

Piracy produces less of a financial burden for the music industry, according to Burke. Producing an album only costs around $300,000 at the top end, whereas the cost of making a film in the studio model starts at $5 million, and ranges right up to $200 million for epics like Skyfall, Man of Steel and Avatar to name a few.

Of course, that makes the huge and unjustified assumption that such $200 million "epics" are an indispensable part of cinema. In fact, one of the exciting developments in recent years has been the democratization of film-making through high-quality, low-cost video technology that lets people make films for thousands, not millions, of dollars. As Burke himself points out, piracy isn't really a problem for such productions -- another argument in their favor.

He then moves on to another discredited idea -- three-strike schemes -- plus some more name-calling:

"It's sad that to forward their case, [iiNet] use what they must know is a fabric of lies. They're saying that there's no proof that graduated response works. They're instancing a number of countries where graduated response was frustrated by lobbying and the power of Google, which pays little to no tax in Australia and creates nothing," he said.

Graduated response was not "frustrated by lobbying", it failed because it is an inherently flawed idea, based on fear, not fairness. And it's telling that Burke tries to distract attention from this by introducing Google and its irrelevant tax affairs here, even going so far as to say that Google "creates nothing". Since people use its free services, and in vast numbers, they presumably see value in them, which means that it most certainly does contribute to Australia, just not in the form of making films or music, say. Bizarrely, Burke then goes to accuse iiNet of the same sin:

They [iiNet] are also demonstrating the fact that their business model is predicated on selling time, and of course they want the present regime to continue. [Pirates] have a smorgasbord of content online that they are accessing, and paying iiNet for the systems to do so. This is a company that has produced nothing in Australia."

But iiNet is not a production company, it's an ISP. It provides access to the extraordinary, multi-faceted riches of the online world, of which unauthorized content forms a very small and unimportant part, despite the copyright industries' obsession with this particular component. The amazing possibilities that access opens up to its customers is what iiNet "produces", and it arguably provides rather better value than money spent buying -- sorry, licensing -- a film or two.

Burke saves the best for last:

"If people are given elegant explanations of why [downloading content] is theft, the bulk of people will be reasonable."

Yes, it's the old favorite "filesharing is theft" argument, which is not just wrong, but so widely known to be wrong, that not even "elegant explanations" could ever make it right. Indeed, it's partly because people like Burke continue to make this ridiculous assertion -- as well as casting slurs on anyone that dares to challenge their purely self-interested view of the Internet -- that the general public holds the content industries in such low esteem.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: australia, copyright, graham burke, isps
Companies: iinet, village roadshow

iiNet Wins Again: Australian Appeals Court Says ISP Not Responsible For Copyright Infringers

from the another-big-win dept

A little over a year ago, in a huge victory for common sense, an Australian court ruled against some Hollywood studios arguing that Australian ISP iiNet was legally liable for not magically blocking copyright infringement and punishing people the studios accused of infringement. As iiNet explained, it had no reasonable way to act. The studios would send notices to iiNet, but notices aren't proof, so iiNet told them to go to the police:

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

The court's ruling was a great read, and very carefully laid out why it makes no sense for ISPs to be copyright cops, because determining whether or not something is infringing is a job for the courts, not some random company:

Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation.

Of course, the studios appealed -- falsely telling the press that the original ruling would mean that unauthorized infringement was allowed in Austalia. But, of course, nothing was further from the truth. The ruling simply said that ISPs weren't liable for the actions of their users, especially in copyright situations where it had no reasonable way to determine the veracity of claims from the studios.

Thankfully, the appeals court has once again sided with iiNet and dismissed the appeal, saying that it has no business being a copyright cop. The ruling again noted that there was no reasonable way for iiNet to know who was really violating copyrights, and "general knowledge" simply isn't enough to put the liability on iiNet.

"I do not think the respondent could reasonably be expected to issue warnings, or to terminate or suspend particular accounts, in reliance upon any such notice in circumstances where it has been told nothing at all about the methods used to obtain the information which led to the issue of the notice," Justice Nicholas said.

"Nor should it be up to the respondent to seek out this information from a copyright owner who chooses not to provide it in the first place."

It's expected that the anti-piracy group AFACT, who led this legal fight, will appeal to Australia's high court, but in the meantime, it's making a bunch of noise about how the government needs to step in and help. Given the sort of lobbying power we see on this issue (including massive diplomatic pressure from the US), don't be surprised to see legal changes attempted on this issue quite soon. However, politicians would be wise to heed the points raised in the original decision about the silliness of putting the burden on ISPs rather than the copyright holders -- the only ones who actually can reasonably do something in these situations.

Filed Under: australia, copyright, isps, secondary liability
Companies: afact, iinet, village roadshow

Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy

from the blame-someone-else dept

A few years ago, after realizing that blaming consumers wasn't a particularly effective strategy in covering up for the entertainment industry's own inability to adapt to a changing market, industry insiders chose a new strategy: blame ISPs. That sent them down a path of trying to force ISPs to do a variety of things, such as installing filters, policing their networks for copyright-infringing material and, of course, kicking users off their networks. In the mind of entertainment industry execs, a failure to do any of these things should be a crime. Note how the industry totally shifts responsibility here. Rather than admitting that they should change with the market, it's always someone else who needs to change to protect the entertainment industry's obsolete business model.

While the industry has been able to get some politicians and ISPs to agree (amazingly, often against their own best interests), it's now gone a step further. A bunch of the biggest movie studios (Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, and the Seven Network) have teamed up to sue Australia's largest ISP, iiNet, for failing to stop copyright infringement. iiNet, you may recall, is the same ISP that has been mocking the Australian government for requiring filters. So, naturally, it's response to this lawsuit is rather direct. While the studios complain that iiNet isn't doing anything, iiNet responds that this is not true at all. They pass each complaint on to the police, because if there's a crime, then the police should deal with it:

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

We are not traffic cops. We can't stand in the middle of it and stop the individual items that might be against the law. These guys are asking us to be judge, jury and executioner.

Even better, iiNet's CEO Michael Malone gets to the heart of the matter:

I think they genuinely believe that ISPs have a secret magic wand that we are hiding and if we bring it out we can make piracy disappear just by waving it. And it doesn't exist.

Indeed, but that might mean that the entertainment industry has to actually take responsibility for their own business model failings, and they can't do that. So they have to blame others.

Filed Under: australia, blame, busines models, copyright, isps, lawsuits, movie industry, movie studios
Companies: disney, fox, iinet, paramount, seven network, sony, universal, village roadshow, warner bros