The article “Pirate
hunt: is this the end of Australia's love affair with illegal downloading?” by Kelsey Munroe in
the Sydney Morning Herald, published 11 April 2015 is an interesting account of Australia’s
interest in piracy, the causes and the consequences on content providers.
Following the Federal Court’s decision
in favour of the Dallas Buyer’s Club a journalist asked the question “Is this the end of Australia’s love affair
with illegal downloading?” No I don’t think the decision will affect
illegal downloading in Australia. However, the journalist does provide some
reasons I believe will help combat the problem and persuade those that are
interested in doing the right thing not to illegally download content.
I agree…
“….Australia has become a land of content outlaws by circumstance.
Consumer group Choice has argued that delayed Australian release dates,
inflated prices and geo-blocks on overseas content provided incentives for
Australian consumers to illegally download content. Market research and tech
journalists agreed….(Munroe, Sydney Morning Herald)
I agree…
“…O'Halloran from consumer group ACCAN believes the new streaming
services will likely have more impact on piracy than the legal and regulatory
framework. "Ultimately the solution to this problem is market-based; so we
really hope these services do move people away from piracy. There's evidence of
that in the US – research shows that rates of piracy goes down as Netflix was
rolled out. We think a similar kind of pattern will occur here."
….(Munroe, Sydney Morning Herald)
Pirate hunt: is this the end of Australia's love
affair with illegal downloading? By Kelsey Munroe in the Sydney Morning Herald.
11 April 2015 (no copyright infringement intended).
After years of pirating with impunity, our
judgment day is coming. From Monday, when season five of the blockbuster HBO
series Game of Thrones begins
on Foxtel, tens of thousands of Australians accustomed to ripping the
sex-swords-and-dragons epic for free from file-sharing services need to think
twice thanks to a landmark court judgement which underlines the illegality of
their behaviour.
Australians are world-beaters when it
comes to online piracy. Perhaps it's our convict heritage. If not you, then
your neighbour, your colleagues or your kids are doing it.
Otherwise-law-abiding citizens – particularly those under 35 – think nothing of
watching TV shows and movies they've obtained illegally on file-sharing websites.
Because it's free, it's easy, it's convenient, we're used to watching TV
without paying for it. Until now, it's seemed to be a misdemeanour that was
entirely without consequence for the perpetrators.
Almost one third of Australian adults
admit to routinely using illegal download services to watch TV shows and movies
– and that number is much higher in younger people. More than half of 18 to 24
year olds do it, according to the latest industry research. Australians
are "the worst offenders of any country in the world", scolded
Attorney-General George Brandis in a Senate Estimates hearing last year.
In the same week as moves to tighten the
noose around copyright pirates proceeded through the communications regulator,
along came the Federal Court's landmark decision in a case brought by the
owners of the Oscar-winning film Dallas
Buyers Club against internet provider iiNet Ltd (and others). Industry
observers are hailing it as a turning point in Australia's love affair with
illegal downloading.
Game of Thrones is central to Australian viewers' complaints about
the TV content market here. When Australian fans who were not Foxtel
subscribers were left out in the cold for last year's fourth season, viewers
rebelled, with thousands turning to illegal file-sharing sites like BitTorrent,
Pirate Bay or Usenet to watch the show. Foxtel's exclusive deal with HBO locked
up the fourth season until the end of the US broadcast, so fans who had
previously been buying the show by episode on iTunes had to subscribe to Foxtel's
products, download the show illegally, or wait three months.
One Sydney viewer, James, 37, says that pushed him
to pirating for the first time. Foxtel was "too expensive, and came with
heaps of rubbish we didn't want just to get one show," he says. He didn't
want to wait while the buzz, plot twists and spoilers played out on social
media. So he shelved his concerns about internet piracy and asked a friend who
regularly used BitTorrent for a tutorial. It wasn't hard to find someone.
"Everyone's doing it," he says.
James, who asked us not to use his last name in
case he could be pursued for copyright infringement, tells a familiar story.
Foxtel reported about 500,000 paid subscribers watched Game of Thrones season four last year, but within 12 hours
after the finale screened, roughly 1.5 million internet users downloaded it
illegally, according to internet tracking site TorrentFreak, making it the most
pirated show in history. The main sources of those downloads were Australia,
the UK, the US and Canada.
In this golden age of television, addictive,
high-quality dramas have proliferated and download speeds have improved, as
have file-sharing services. We have discovered we quite like watching whatever
we want, whenever we want. Six episodes of Orange is the New Black on a rainy Sunday? Can do. Australia has
become a land of content outlaws by circumstance. Consumer group Choice has
argued that delayed Australian release dates, inflated prices and geo-blocks on
overseas content provided incentives for Australian consumers to illegally
download content. Market research and tech journalists agreed.
But it's an argument the TV and film industry
couldn't stomach – what other product could people justify stealing by arguing
the price was too high? "Dragons don't come cheap," complained
Foxtel's Bruce Meagher. Now the backlash has finally begun.
Michael Wickstrom, the Vice President of Voltage
Pictures – the film's owner – says the company's hand was forced by
Australians' addiction to pirated content. "We feel that there's so high a
level of piracy happening in Australia that the numbers are just so far beyond
other western countries that we need to do something about this," he told
Radio National this week.
Pursuing an aggressive strategy of enforcing their
copyright, the film's owners sued six small Australian internet service
providers, (iiNet, Dodo, Internode, Amnet Broadband, Adam Internet and Wideband
Networks) demanding the names and addresses of their users who it alleged
shared the film illegally. A 2012 High Court decision had ruled ISPs were not
liable for their users' infringements, so Voltage took the fight directly to
the users. They hired a German anti-piracy firm which tracked the accounts of
Australian users uploading the film on BitTorrent.
The decision handed down by Justice Perram on
Tuesday ruled that the ISPs must disclose the names and home addresses of about
4700 Australian internet account holders whose accounts were used to share the
film. Uploading only a small "sliver" of the film was not a defence.
Letters of demand threatening legal action or requesting payment will follow.
The decision upended previous cases that kept infringers' identities private.
"The main takeaway for illegal downloaders is
you can't do it in secret anymore," says Dominic Woolrych, a lawyer and
online piracy specialist. "Now that you can be directly traced, there is a
huge deterrent to illegal downloading. This is a real tipping point."
Legal arguments against pirating content have
always run in favour of the rightsholders, but there remains a lot of
resistance to that logic among viewers. Annual research since 2008 by the IP
Awareness Foundation – an Australian movie and TV anti-piracy body –
suggest the "principal reason people pirate is because it's free",
says Executive Director Lori Flekser. "Everything else is an excuse – that
stars are overpaid, that everyone's doing it – which is not true. That they
don't like Murdoch or they don't want Foxtel. But what's interesting about this
case is that one of the justifications pirates give for their activity is that
there's not measures in place to stop it, which reinforces the belief that it's
not important. This decision shows that content theft is being taken
seriously."
The judgement has been warmly welcomed by the
content industry in Australia which sees it as putting power back in the hands
of rightsholders. But iiNet's chief David Buckingham said in a statement after
the ruling that he was also pleased with the result because "by going
through the process we've been able to ensure that our customers will be
treated fairly and won't be subjected to the bullying we have seen happen
elsewhere."
That's because iiNet's lawyers focused on the
practice of "speculative invoicing" which Voltage Pictures used
overseas. In the US the film's owners sent settlement letters (dubbed "pay
up or else" letters by Choice) which threatened legal action against
alleged infringers. The letters claimed they would be liable for up to
US$150,000 ($196,500) damages in court unless they paid so-called settlement
fees of up to $US7000 ($9000).
Justice Perram said this technique might be illegal
in Australia, and required any letters to the infringers be first submitted to
him for approval. So the consequences for those consumers who did illegally
download Dallas Buyers Club in
Australia aren't likely to be massive fines.
Yet consumer groups remain concerned the case will
pave the way for more abusive practices in future.
"The courts aren't really set up to be
reviewing every single draft letter rightsholders want to send out,"
points out Xavier O'Halloran from communications consumer body ACCAN.
"It's a bullying practice that we don't think is the best way to deal with
the problem of piracy."
The case is an odd one to have had such
impact: the decision was a procedural step known as a "preliminary
discovery" application targeting fewer than 5000 alleged infringers of the
copyright in one small-budget Hollywood film, and Australian law does not
permit the punitive damages that in the US have made these cases financially
appealing to rightsholders. (Damages for copyright infringement in Australia
might be more in the order of $14.99 per offence – the cost of buying the film
on iTunes.) Plus, in this case, Voltage Pictures was ordered to pay the ISPs'
costs, and the ISPs may yet appeal. So why do it?
For the deterrent effect, says Woolrych. "The
film industry has seen what happened to the music industry five to 10 years ago
and they know they need to come out swinging. It's a strategic move to get some
publicity that it's illegal and that they will try to enforce their
rights."
Piracy is destroying profits, Wickstrom said.
"We are very serious because we're an independent producer and we live and
die by these independent films – we need to protect our copyright," he
told Radio National. "I believe that other producers are going to follow
us because enough is enough, the profits are seriously being affected.
The decision comes amidst huge upheaval in the TV
and movie content business in Australia. New video-on-demand streaming services
including Seven-Foxtel joint venture Presto, Fairfax-Nine's Stan and US giant
Netflix launched in 2015, offering low-cost "all you can eat" models
which aim to make legal viewing more attractive than pirated content. So much
for the carrot. The stick – anti-piracy regulation – is also catching up with
viewing habits.
In an attempt to avoid new laws which would see
ISPs liable for users' infringements, industry groups are negotiating a new
voluntary code of practice with a "three-strikes" policy. Repeat
infringers would be sent warning letters – rather euphemistically labelled
"education notices" – by their telco. After three infringements in a
year they could be pursued by copyright owners. In addition, communications
minister Malcolm Turnbull late last month introduced a bill to permit movie,
music and TV rights holders to apply to courts to block overseas file-sharing
websites. The industry hopes that casual content pirates,
scared by the court's decision, the new code or seduced by the legal services'
offerings, will stop illegally downloading.
But dedicated pirates will have no trouble stepping
around these measures. Research this month by Essential Media suggests the use
of virtual private networks to protect users' anonymity is on the rise, with 16 per cent of Australians
saying they have used a VPN or Tor, the anonymising routing system. The figure
is 20 per cent for young people. VPNs are becoming easier to use and tech and
media experts suggest VPN use is likely to skyrocket following the Dallas Buyers Club decision.
O'Halloran from consumer group ACCAN believes the
new streaming services will likely have more impact on piracy than the legal
and regulatory framework. "Ultimately the solution to this problem is
market-based; so we really hope these services do move people away from piracy.
There's evidence of that in the US – research shows that rates of piracy goes
down as Netflix was rolled out. We think a similar kind of pattern will occur
here."
If he's right, Dallas Buyers Club, a film that celebrated bending the law, may
wind up an interesting footnote in Australian legal textbooks.
