Why new pirating laws won’t work

Communications Minister Malcolm Turnbull and Attorney General Senator George Brandis want to lay down the law to Aussie pirates. Source: News Corp Australia

AFTER months of deliberation, document leaks and a public forum, the Australian government finally believes it has a winning plan for dealing with Aussie pirates.

Basically, the government is giving internet providers and rights holders 120 days to agree on a piracy code, otherwise they will step in. There are certain measures that must be included:

• Internet service providers (ISPs) need to take steps to deter piracy by issuing a "warning notice scheme" to let people know when they are downloading things they shouldn't;

• A way for rights holders to take action against infringers "after an agreed number of notices".

• Giving people information on legitimate ways to access content;

• The fair appropriation of costs between ISPs and rights holders;

• A safeguard or "three strike" system for consumers.

While the ISPs and rights holders are sorting their stuff out, the government will also be looking to make changes to the Copyright Act to allow pirating websites to be blocked.

There's just one problem with all this. The plan isn't going to work.

iiNet has been fighting studios who want it to take action against its customers. Source: Supplied

Let's start with the internet providers' role in stopping piracy. In the 2011 iiNet vs Roadshow Films case, the High Court ruled that ISPs had no obligation to go out of their way to protect copyright owners.

The court stated that there was no evidence that warnings would actually deter people from illegally downloading. It also said it is completely unreasonable for ISPs to disconnect people from their internet connection purely based on unverified allegations.

Those notices from the ISPs will be exactly that: unverified allegations. There is no definitive proof on who downloaded anything.

Ian McDonald, Special Counsel at Simpson Solicitors said that, "the result of the iiNet case will have influence on the changes currently being made to the Copyright Act."

The government hasn't exactly given ISPs much power with these upcoming negotiations either. Basically saying that if they don't do what the rights holders want, they will force them to.

This means ISPs will still probably look to implement some kind of strike system to try to protect themselves from lawsuits where they will terminate "repeat infringers". But the notice of the infringements will give consumers a leg to stand on when fighting back.

So what about the government? Its current plan is to try to get pirating sites like The Pirate Bay blocked in Australia.

The Pirate Bay is Australia's most popular torrenting site. Source: Supplied

They aren't the first government to try. Several others around the world, including the British government, have already implemented such a system. But even British anti-piracy agents say that blocking sites like The Pirate Bay hasn't achieved anything - and has just wasted resources.

James Brandes from ORGZine, a UK digital rights magazine, says: "Not only is the block policy fundamentally failing, but it raises important censorship."

Australia is the world's biggest pirate of Game of Thrones. Source: AP

Even with some ISP and government involvement, the task of taking down pirates is still mostly up to the rights holders.

Essentially, rights holders are hoping that people will see a warning notice and stop downloading. If that doesn't work, then they hope the ISP will disconnect them. After that, the rights holders will try to sue individuals.

The music industry tried this years ago. It achieved nothing, and it was also a PR disaster.

So what can rights holders do next? In the USA, movie studios have been doing something called speculative invoicing. This involves sending a legal threat to someone saying that unless they pay a sum of money they will take them to court. Often that sum of money is a few thousand dollars, when the actual loss to the rights holders would have been no more than a few hundred.

People often choose to settle, whether the sum is fair or not, because it will cost even more than that to take the matter to court.

The most infuriating part of all this for Aussie consumers is that time and time again, they have said that if there was an affordable, easy way to access content as soon as it was available in the US or UK, they would be willing to pay for it.

Services such as Netflix have already proven the point about price and ease of access, but the big studios still choose to delay episodes of big TV shows like Game of Thrones for the Australian market.

When they do decide to sell the rights for shows to air at the same time in Australia, they generally choose premium services instead of free-to-air channels. Obviously, making a profit is the key part of a business - but it only hurts the fight against piracy.

In the end, if studios and copyright holders want to stop piracy in Australia, they should give consumers what they want: content that's affordable, fast and easy to access.

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