Why AFACT’s Piracy Stance Remains Hopeless

Why AFACT’s Piracy Stance Remains Hopeless

Having suffered its third court defeat, the Australian Federation Against Copyright Theft (AFACT) can’t pursue its futile anti-piracy legal action against iiNet any further. That story is over. But the organisation’s apparent helplessness and cluelessness in the face of digital reality is very much an ongoing tale.

Picture by Dan Kitwood/Getty Images

AFACT held a press conference today to outline its response to the finding. As we reported earlier, the High Court unanimously rejected its appeal against two earlier court findings, which had also rejected AFACT’s argument that iiNet should be held responsible for some of its users using BitTorrent to download copyrighted material. One of the more noteworthy parts of today’s judgement outlined the disconnection between the service iiNet and other ISPs provide (net access) and the use of BitTorrent to access and share digital files:

Once infringing material is stored on a customer’s computer iiNet cannot take down or remove that material, and cannot filter or block the communication of that material over its internet service. Nor has iiNet any power to prevent its customers from using other internet services – and, as noted earlier, several users of an internet service may share an IP address. Whilst the relationship between iiNet and its customers involves the provision of technology, iiNet had no direct technical power at its disposal to prevent a customer from using the BitTorrent system to download the appellants’ films on that customer’s computer with the result that the appellants’ films were made available online.

In simpler terms: don’t shoot the messenger.

So what happens next? I don’t have an issue with AFACT working to find a way to ensure that people who produce digital content can make a living from that work. What I do have an issue with is that it doesn’t seem to have any realistic idea about how to go about doing that, certainly not within a useful timeframe.

AFACT’s new stance: let’s legislate

Having lost the battle to create a court precedent, AFACT is now arguing that urgent legislative change is the only way to stop online piracy. At the press conference, managing director Neil Gane largely read from his pre-prepared statement, the gist of which was this:

Both judgements in this case recognise that copyright law is no longer equipped to deal with the rate of technological change we have seen since the law of authorisation was last tested. They both point to the need for legislation to protect copyright owners against P2P infringements . . . Now that we have taken this issue to the highest court in the land, it is time for Government to act. We are confident the Government would not want copyright infringement to go on unabated across Australian networks especially with the rollout of the NBN.

Taking that statement at face value, there are still two obvious problems here. The first is that getting legislation enacted is a really slow process at the best of times, and doubly so in a Federal Parliament which doesn’t have a majority government. As a further complication, there’s already an active review of copyright legislation being conducted by the Australian Law Reform Commission, but that isn’t due to report until November next year. Getting a higher priority could be tricky.

MORE: •iiNet On AFACT, Copyright And Why Consumers Need A SayHigh Court Dismisses AFACT Appeal

The bigger problem is that AFACT doesn’t seem to have much idea what that legislation should actually include. Gane was at pains to emphasise that it doesn’t want to sue individual customers: “”AFACT has never used the ‘three strikes’ language; we have always supported a graduated framework. We have no plans to sue end users in Australia.” Given how badly that strategy has worked for US content creators, I suppose that’s good news.

But beyond that, and suggesting that the High Court judgement should form the starting point for discussion, he couldn’t offer up any specifics. Bear in mind that this legal action has been running for three years, and AFACT has not yet won. If the organisation hasn’t been thinking about alternatives over that time, it isn’t doing much of a job for its members.

Agreeing to a policy

One obvious path to sorting out the issue would be coming to an agreement with ISPs over a code over conduct to deal with alleged infringers. Work has been progressing in this area, and we saw a code proposed by industry group Communications Alliance earlier this year, which would provide for a series of warning notices to be issued in cases where copyrighted material had been identified by owners as being exchanged. The proposal caused much debate when it emerged, but it’s a starting point and one which, unlike the contentious and failed legal action, has at least some ISPs prepared to participate.

But AFACT apparently doesn’t think that’s good enough. At the conference, Gane initially alluded to the discussions with ISPs, but in a manner which suggested going back to those talks was anything but a certainty:

A proportionate and effective copyright alert process has been discussed. There is the possibility that these discussions would continue post these decisions.

The key word there is “possibility”. Hardly a ringing endorsement, is it?

I asked Gane what aspects of the proposed code AFACT actually objected to. His reply:

The issue comes down to how effective and proportionate that response is and what the cost implications are.

Reading between the lines, this sounds a bit like: we want people to get busted a lot and we don’t want to have to pay for it. I don’t think you need to be an expert to predict that approach won’t be popular — or workable. It’s a fairly trivial task to anonymise your torrent activity, after all.

Despite arguing heavily for a legislative approach in its press statement, I got the impression that AFACT would actually prefer a code of conduct, but one where it got to set all the rules but didn’t have to pay the operating costs. When asked which countries he thought handled the issue better, Gane responded quickly: “If you look what’s happened in the States, they did not have a legislative or regulatory fix. What they have is the music industry in negotiation with big providers. We would be supportive of a similar framework.” I don’t think many Australians will be as enthusiastic about copying the much-mocked US approach.

Make it easy and we’ll stop

The bigger picture argument in this area — one which iiNet itself has been vocal in supporting — is that the best way for content creators to ensure that people don’t pirate their works is to make them easily available online, and in a timely fashion. That was a point Gane himself was happy to make: “ISPs are becoming increasingly dependent on monetising legal content and therefore protecting its value. What we are seeing is a convergence of business models. It is in an ISPs interests to protect those business models.”

What Gane flat-out dodged was a question about whether copyright providers would work harder to deliver content in a timely fashion. Downloading wins on two fronts: convenience and timeliness. As the success of iTunes demonstrates, people will pay for content if it’s easily available in legal form. But they’re increasingly unhappy to be forced to wait for months for that online access simply because of the country they live in. That problem won’t be solved by legislation or by a code of conduct; it will be solved when the creator member companies of organisations like AFACT acknowledge that the market is global.

Gane didn’t seem to want to acknowledge that:

Commerce can only take place in a free market economy, not a free-for-all economy. There is no business model in the world that can compete with free.

No, there isn’t. But there’s no business model in half-baked solutions either. AFACT can’t keep its head stuck in the sand any longer. It needs to be clearer about alternatives, and more willing to engage in discussions, if it wants to have any chance of remaining relevant.


      • Take another look – that is an Ostrich, not an Emu.
        Just look at any image of Neil Gane though – you wouldn’t buy a car from that man, he looks like a homeless guy they just put into a suit… really does just look like a wally.
        But seriously, the music, televison and film industries haven’t died or shown any signs of suffering as a result of downloading – it’s no different to my mate recording a show on VHS and giving me his tape after, no money is changing hands with bit torrent etc. The majority of stuff people download they wouldn’t have watched/listened to if they had to pay

  • AFACT reminds me of my little brother when we used to play boardgames, he refused to give up when all hope was lost and blamed everyone else except his own inadequacy (hey bro! ;)) and in the end he just flipped the board and all the pieces went everywhere.

  • The way to stop priracy really just comes down to 1 thing, that will work and has already worked.


    Continuing the educations of the consumers that piracy is wrong, and effects hard working people not just faceless corporations, and also Educating thier members about why people pirate content. (which is not just because it is free) Stopping them from doing things like forcing people to watch previews when starting a DVD that they own. Restricting us on how we consume content. or in what parts of the world we can purchase it.

    Also AFACT’s could learn that treating everyone as criminals also doesn’t help!

    Most people want to do the right thing, so give us as many oportunities as possible to do it.

    • The only business model that would interest me would be a subscription model, for about $20 a month max. This would allow me to stream (instantly, and in 1080p) anything that i can currently get for free (which is almost everything ever made). I would be able to do this as many times as i wanted, from any device using my user ID. I would also be able to have multiple login’s at the same time (lets say about 10 concurrent people max).

      This would allow my whole family to use a single account, watch 5 different movies in 1080p at the same time, and not pay an unbalanced ammount. Until this is avaliable, i will obtain my content for free.

      my motto? “I do it my way”

      • So why is what you say any different to a bloke saying ” I like buying Gucci handbags for my wife , so until they are $30 each I am going to ramraid Gucci stores to provide them for free to her”

        You’re a filthy criminal scumbag , just admit it.

        • You’re an idiot, it would be more like “I like buying Gucci handbags for my wife , so until they are $30 each I am going to peek into Gucci stores and copy the design to make my own without them or anyone else noticing or being effected by it, as I was never going to buy it at their price”.

  • The fact is no matter what happens in the future, legislation to stop piracy or not, they will never be able to stop it. Maybe they’ll stop your average moron from downloading a few films but SWIM downloads 40+ GBs a day of pirated content and there’s truly no way that is going to change. Ever. If anything it will increase with faster speeds and bigger storage devices. SWIM rarely goes to the cinema and does not watch network TV . Why? Too expensive. Too many ads. Too little content. And too many morons. SWIM has everything he needs in his living room. And SWIM has taught all his family and friends to do the same. Even nanna! Hollywood lost many years ago. Both the battle and the war. They’re like a flailing fat kid who has jumped in the deep end of the pool trying to stay afloat. Business-model is broken but it’s still everyone else fault. SWIM has no sympathy for a business that doesn’t help themselves and listen to its end-users. Now, what to download next. Maybe a new release movie that will never make it to Australian screens. Or perhaps one of many TV shows that may air here in a few months though bastardised and ruined by five-minute long ad segments that take up 60% of the broadcast and extend a 50 minute show to 2 hours! So, what would you choose?

  • “They both point to the need for legislation to protect copyright owners against P2P infringements”
    I’d say they both point to the monolithic publishers being passed their use by date.

    Technology has killed a great many industries, but the answer isn’t to legislate to make the old viable, it’s to embrace the new and find ways to make that work instead.

  • “Technology has killed a great many industries, but the answer isn’t to legislate to make the old viable, it’s to embrace the new and find ways to make that work instead.”

    Well said, Blake. That has already been proven time and again. A big part of the problem is business trying to hold on to old models of selling instead of being innovative – it’s almost like they’re afraid of trying anything new. iTunes has worked well because it was an innovative idea.

  • I agree the ” the best way for content creators to ensure that people don’t pirate their works is to make them easily available online, and in a timely fashion” provided that access is reasonably priced. Angry Birds has made hundreds of millions for its creators by charging 99 cents a downloaded copy. Why can’t AFACT face the facts and recognise that they can beat “copyright infringement” if they make their material available at a price that makes priacy not worth the effort for most people. What they lose on an individual sale they more than make up through additional multiple sales.

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