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.
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.