Leaked: Australian Government Plan To Deal With Piracy

Attorney General George Brandis has been banging his head against his desk for months now trying to figure out how to stop pirates stealing content in Australia. Thanks to a leak of the government's upcoming discussion paper on the topic, we now know what the AG plans on introducing.

Crikey leaked the government's "Online Copyright Infringement Discussion Paper" this afternoon, and it shows that all the moves we expected — and a few more — will likely be employed to combat piracy.

Affordability And Availability

Industry submissions from the likes of Google and others have all pointed to the same problem when it comes to piracy: the price of content in Australia is too damn high, and it takes ages to get here.

In the new entertainment economy, users want content faster and for better value when compared to the prices of overseas streaming services. Instead, we're saddled with streaming services that cost top dollar and long waits for content.

Content creators and relevant industry groups which have been lobbying the government on piracy for years now have gone on record saying that they don't believe in the pricing and availability problem, but despite their posturing, the government now sees the issue too.

In its leaked discussion paper, the government freely admits in the first sentence of its introduction that there's a real content problem in Australia:

"There are a number of factors that contribute to online copyright infringement in Australia. These factors include the availability and affordability of lawful content, the case with which consumers can access unlawful material and consumer awareness of legitimate services," the government wrote.

Translation? Aussies wait too long, pay too much, pirate too often and don't know about decent legal streaming services.

So what does the government plan to do about all that, then? Well, not much. Unsurprisingly, the government would rather hit you with a stick than lure you with a carrot.

Site Blocking

It has been anticipated for some time that the government would pursue site blocking measures in order to cut down on Piracy. Now we know for sure that the government wants to kill access to sites like The Pirate Bay from Aussie connections.

In a section headed "Extended injunctive relief to block infringing overseas sites", the government details how it would like to see rights-holders given the power to sue ISPs to block sites offering "infringing material":

"A...provision in Australian law could enable rights holders to take action to block access to a website offering infringing material without the need to establish that a particular ISP has authorised an infringement. If adopted, any proposed amendment would be limited to websites operated outside Australia as rights holders are not prevented from taking direct action against websites operated within Australia," the government wrote.

To save time, the government would allow rights holders to sue multiple ISPs at the one time to ensure they all block access to a particular "infringing" site in Australia.

"Such a power would clarify that a rights-holder may list a number of ISPs as respondents to an application for injunctive relief. This would reduce the opportunity for people to 'evade' the operation of such orders by switching ISPs. The websites would need to be blocked by carrier level ISPs at the wholesale level, ensuring that re-sellers would be unable to make blocked sites available to subscribers."

To get a site blocked in Australia, the court would have to be convinced by use of evidence presented by rights-holders that the primary function of any site in question would be to distributed copyrighted material. The court would then take into account the rights of those being affected by the site blocking proposal if it were to pass, and "the importance of freedom of expression".

The good news about potential site blocking schemes is that the government is prepared to make rights-holders to pay for the process.

"Rights-holders would be required to meet any reasonable costs associated with an ISP giving effect to an order and to indemnify the ISP against any damages claimed by a third party.

Because it's a discussion paper, the government wants the industry to respond to particular questions. Elsewhere in the paper, the government will ask whether the industry thinks the proposed plan is appropriate. In the instance of site-blocking, the government has already assumed it's a solid idea and pressed on to ask responders to consider what a court should take into account when determining whether or not to block a site.

Site blocking appears to be coming to a Copyright Act near you, whether the industry likes it or not.

iiPirates

The discussion paper also proposes overturning the crucial iiNet vs Village Roadshow decision to comply with various Free Trade agreements with the US and South Korea.

One particular paragraph in the yet-to-be ratified Free-Trade Agreement between Australia and South Korea references a need to amend the Copyright Act to "provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court’s decision in Roadshow Films Pty Ltd v iiNet Ltd, which found that ISPs are not liable for authorising the infringements of subscribers".

iiNet’s long-running and contentious Federal and High Court trial against Roadshow Films and AFACT established a legal precedent that ISPs should not be liable for the actions of their users in illegally accessing and downloading content that infringes the copyright of media rights-holders.

The KAFTA, it seems, requires that this legal precedent be nullified and the Copyright Act be amended to require ISPs to actively assist copyright holders — likely in identifying alleged pirates, sharing their details with the allegedly aggrieved media companies and forwarding those companies’ infringement notices to end users.

The government anti-piracy discussion paper makes it abundantly clear that the government is looking to overturn the iiTrial decision:

The High Court's decision in Roadshow Films PTY LTD & Ors v iiNet LTD [2012] HCA 16 (20 April 2012 determined that the ISP, iiNet, was not liable for authorising the copyright infringements of its subscribers using systems that iiNet did not operate or control, and that there were no reasonable steps that could have been taken by iiNet to reduce its subscribers' infringements. The effect of the decision is to severely limit the circumstances in which an ISP can be found liable for authorising an act by a subscriber that infringes copyright.
The Government believes that even where an ISP does not have a direct power to prevent a person from doing a particular infringing act, there still may be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement.
Extending authorisation liability is essential to ensuring the existence of an effective legal framework that encourages industry cooperation and functions as originally intended, and this is consistent with Australia's international obligations.

iiNet's Steve Dalby says the company will wait for the official release of the document before commenting.

Pirate Trackers

To make sure that any anti-piracy scheme is working, the government would look to the industry to track the amount of content being pirated in Australia.

"A particular challenge with addressing online copyright infringement is the absence of a commonly accepted approach for quantifying the volume and impact of such infringement. This is important for the Government but even more important for industry as it seeks to develop its own approaches to address the problem.

"It is also essential that industry schemes and commercial arrangements incorporate ongoing monitoring and evaluation to ensure that the approach is reducing online copyright infringement to a sufficient degree to justify the impact of the measure imposed. This will also enable potential future improvements to be identified, which can be implemented through revised schemes and arrangements — a key benefit of the flexibility of the proposed approach."

Wait, didn't AG Brandis say that Australia was the worst country for piracy in the world? How did he know that for sure, I wonder...?

Don't Panic

This document lays out a pretty bleak future for Australian content lovers. The government knows there's a content and pricing problem — it even goddamn said so in its paper — but it hasn't laid out a plan to adequately tackle the issue. Too much stick, not enough carrot.

But don't panic: we aren't all screwed yet.

The important thing to remember about this document is that it's a Discussion Paper: it isn't a legal document, it's not about to passed into law in its current form, nor are you about to have your door kicked in by the Feds for pirating Game Of Thrones' fourth season.

This is a document that's about to be circulated to the industry for comment, and you can have your say too once it's officially released.

What do you think of the government's work combatting piracy so far? Will the proposals laid out effectively cut piracy rates? Let us know in the comments.

Campbell Simpson also contributed to this report.


Comments

    ISPs: Why do you want us to undertake action against our users, why is it OUR fault if they pirate? Can't you see this is illogical??

    Govt: Hmmm. You may have a point. A point that has been upheld by the highest courts in our country.

    Village: I don't like it. Here's some money.

    Govt: RIGHT LET'S GET RID OF THAT RULING THEN LOLLIPOPS FOR EVERYONE EXCEPT YOU, ISP!

    (Edited to be more realistic as per @pupp3tmast3r)

    Last edited 28/07/14 3:16 pm

      You missed out on - "Village: Here's lots of money! Now I don't like it."

      Who needs votes when you have money!

        Considering this government isn't expected to go to a second term, they might as well put their filthy hands in every available pocket.

          Then we can go back to the mandatory filter Labor promised us yaaaaaaay

            Except they backtracked from that.

              Funny when a party backtracks right before an election, never means it is off the table.

                No matter what party comes to power, they're gonna try to appease the uninformed with bullshit tactics like this, or that. This is the latest attempt at some sort of filter or control. It will fail too. It may get implemented, but then, like always, we'll find a way around it.

                  That was kind of my point in the first place, I wasn't trying to make a call for the positive for either party. It's damned if you do damned if you dont.

                  Although at least with this plan I can still get my porn with ease.

                  VPN's should get around any ISP block they may introduce. As far as the ISP is concerned, your connection would go to another country and end there.

                The ALP dumped that policy well before the last election.

            good NBN with mandatory filter....as long as filter dosnt effect my xbox multiplayer matches.

              Sarcasm? A filter is a slippery slope to censoring the internet entirely, this is an issue of freedom of speech more than it is an issue of copyright infringement.

          Want to make a bet. If Gillard could win an election a monkey can.

            Oh, and Gillard should definitely be equated to a monkey because Murdoch's press vilified her non-stop for her promising no carbon tax and then introducing one? What does that make Abbott, who promised no cuts to education, health, no change to pensions, and no cuts to the ABC or SBS? At least the carbon tax did something productive - and no, it didn't raise prices as Abbott claimed it would/did - the only thing that went up was utility bills... and they went up by a paltry 9%.
            Give me a monkey ANY DAY.

              I have learnt that lib or labor they are all the same

              Trust me, I knew the monkey personally. And it was indeed a monkey. Not much else,in fact. Sadly.

    hopefully people power will veto any decision here

    except it seems that for every 3,000,000 opinions (1 per citizen) noted, the cries of 1 mogul seem to be more important. All they'd need are 8 moguls and we're done for....

    Brandis - "there's a piracy problem in this country"
    LITERALLY everyone - "shit is too expensive"
    Brandis - "maybe we should make distributors charge more reasonable rates"
    Assistant - "Murdoch says no"
    Brandis - "right let's just waste time and money then"

    Shouldn't changing proxy work on this kind of blocking?

      VPN, Proxy, all the usual work around that people in the USA use now will work here.

    'iiNet, was not liable for authorising the copyright infringements of its subscribers using systems that iiNet did not operate or control'

    Its like the manufacturer of a dinnerware set being sued for selling a knife that was used in a murder. Just plain stupid. Love the stance iiNet are taking with this.

    I don't think that pirate is practicing proper gun safety. Or is that the government's proposed solution to piracy?

    In all seriousness though, this is a pretty ridiculous proposal that ignores all that's come before it in other countries. It's as bad as suing sites that link to another site with infringing content, and it's essentially heading down the same road as PIPA/SOPA. It's also putting the onus onto ISPs too much and is as bad as content streaming sites trying to make ISPs pay for the bandwidth being used by their subscribers. I don't like any of this proposal other than the completely ignored acknowledgement we pay too much and wait too long.

      " is as bad as content streaming sites trying to make ISPs pay for the bandwidth being used by their subscribers"

      Uhh, I think you've got that round the wrong way buddy. See the net neutrality argument in the US - not as bad here, but still a very large issue.

    Send them really nasty anonymous letters and tell them if they don't like it, they should take it up with the postal service.

    Yarrrr! Hoist the VPNs!

    Let's sue the government, that is about as realistic to get something done as the above mentioned discussion paper. IDIOTS. Don't you see that you should be working for the people, not for the old industry grey beards and the like.

    I'm not a pirate but I am a geo-block dodger. The government can do whatever they want to the filthy thieving pirates but if they imped my ability to avoid the Australia tax I'll start illegally downloading the entire internet dam it!!!

      Probably exactly the wrong attitude to take seeing as they see you as just as bad as the people not paying at all.

        Didn't the boss of Foxtel not long ago describe people who bypass geoblocking as "pirates"?

          But it's just geo-blocking man ... it's not even quasi-legally-enforceable ? Didn't the Senate enquiry Ed Husic sat on last year issue a statement to the effect that geo-blocking was essentially evil, and all the companies charging Australia Tax were bastards ? To paraphrase :) Not that the current government cares about such former Senate enquiries of course ...

          That's fine..... I see the content providers in Australia as "Racketeers"...

          Yeah he did, which is my point, to the people who are driving these policies people bypassing geoblocks are just as bad as people not paying at all.

        If you buy a box set from JB Hifi instead of subscribing to Foxtel you're as bad as the pirates. If you purchase it through iTunes, Google play, Ultraviolet or some other streaming service, than you're as bad as the pirates. If for some reason you don't have Foxtel you're as bad as the pirates.

      One problem with that - by accessing stuff via, say, Netflix you are probably breaching copyright which is owned by, say, Foxtel in Australia. So you are effectively still a pirate...

        That's the thing, you are not breaking copyright using a vpn to get around geo-blocks. But you are breaking netflix T&C's.

      They can't block VPNs (unless they want to fuck the corporate world even harder), so there's literally nothing they can do to that unless they implement mandatory ISP level packet filtering (never going to happen). It basically seems to be an attempt to stop 'mum and dad' downloaders.

    Seriously. This is all because the government is in Murdoch's pocket. If they introduced legislation to regulate the cost of something like cable, or access to legal streaming services less people would pirate.

    Now don't get me wrong: There will always be piracy. But it will become the realm of the few instead of commonplace.

    Case in Point: itunes store. Until itunes and in particular, it's integration with the iphone, I'm fairly certain no-one paid for music, it was easier to pirate it because a) free and b) don't have to leave your house. When itunes store was introduced, and it was easier than pirating it went a long way to reducing music piracy. Yes there will always be pirates, but slaps on the wrist won't deter them - giving them want they want will.

    It's a good thing that this got leaked before they could stealthily pass it as a law before anyone could protest. Not that there's much that protests can do when the government has now shown that they will go as far as revoking a lawful precedent to allow foreign companies to do whatever they want. Now if we only could get a leak of how much money are these companies paying the government...

      Here:
      http://www.abc.net.au/news/interactives/tables/aec-political-donations-table/

      Village roadshow paid the Liberal party far more than any other contributor prior to the last election, note how they tried to hide it by splitting it up amongst different sections of the party.

      Edit: Can someone explain to me why buying a government isn't illegal?

      Last edited 28/07/14 6:58 pm

        Because the theory is that you're allowed to donate money to people who represent your cause, so that they can better advertise and explain to people what their policies are.
        However, this only works when you're backing someone who has already taken a position, as opposed to convincing someone to take a position.

        Doesn't really work in an environment where parties pay marketers to hold focus groups and workshop their policies around what's popular, purely for the sake of gaining power instead of representing a firmly-held belief and accepting that votes will only come if the values they stand for are shared by the majority. (Y'know... how democracy is supposed to work, but doesn't.)

        ...Not that the party would have had to work very hard to convince themselves that this is their position. They are in favour of centralizing the wealth in the hands of big business. Y'know, aiming to distribute wealth to the 1% wealthy on the understanding that out of the remaining 99%, only the deserving will somehow be able to pry that wealth out of the wealthy's cold, clenched fists. (Or that it will 'trickle down'. Equally as laughable.)

        You might want to work on your addition skills. Roslyn Packer still smashed the total. I count 5 village roadshow donations at a total of $337,004 whilst Mrs Packer's contribution is a whopping $580,000.

        Still it's a fascinating link so thanks for sharing it :) And at least lobbying to our government isn't as bad as in the US so let's be thankful for that!!!

          Yes sorry, forgot about that, in my mind it's all money coming from people heavily invested in the media so it's starting to blur together.

      I don't know whether it matters with this government - they are quite evil about their evil plans for pretty much everyone in Australia who isn't a miner or media magnate.

    I don't really download much these days but if they implement something like this I will have to hoist the sails again just to prove what a waste of taxpayer money this is.

    If downloading drops even 1 or 2 percent after implementing this they will say "Look it works!" and the measures will just continue to get harsher.

      Thing is, if the piracy migrates to VPNs, the measurable piracy will decrease significantly and it'll be hailed as a huge success.

      The real problem there is they're using the entirely wrong metric to measure success there. Yes, technically if you're goal is "stopping piracy" then a drop in piracy rates is a success, but what the content suppliers should REALLY be interested in is "increasing sales". I mean, that's their problem with piracy right, it's reducing their sales? It's just really annoying that they will make a big deal about how "look, less piracy, it's awesome" is some great measure of success but if there's no matching increase in sales then they're just wrong, they have not succeeded at all.

        That in itself is a huge problem. It's incredibly hard at any point to actually correlate piracy with lost sales. Look at a few possible pirate types;

        1. No money (student/kid) - if they can't pirate they still won't buy because they have no money
        2. Conscientious objector - the type who refuses to buy because big companies are evil. Well, if they live up to their motto they won't buy if they can't pirate
        3. Try before you buy user - (this is me!) someone who likes to listen to music or see a movie before deciding whether to pay for a permanent version. This sort of person will buy stuff they like either way. And will often buy MORE because piracy provides exposure (free advertising) of new product.

        So what "type" of pirate actually would contribute to lost sales? I suppose there are some. The people who pirate because they don't want to spend money, but aren't actually poor. Even then, it's hard to say just how many sales are actually lost since there's nothing to guarantee that they'd actually pay for the same amount of content that they pirate.

    Another incredibly useful (possible) policy aimed at propping up industry rather than tax payers.

    Kim Dotcom needs to setup a branch of his electoral party here. Or possibly we need a branch of the Swedish 'Kopimi' (SP?) party !

    Given the Australian market cannot realistically bear any more than it currently does when it comes to paying for media, why do I get this funny feeling that the copyright holders want to have their cake and eat it too?

    We pay too much already but I think this is an attempt at shoehorning Australian's into legitimately purchasing (through "approved channels") at which point the price will only get jacked up.

    Just get fucken Netflix here. I understand things cost more to run here. Rent, power and wages are more then America then so is our pay. If we got the samw Netflix for $15-20 per month I and many others would be happy.

      You know they will eventually release Netflix for $50 a month with none of the good shows, right?

      Because... Australia.

      Rest assured the rent-seekers at Fuxtel will do their level best to ensure Netflix never enters this country - the tragedy for them is that bypassing it is so easy and they offer so little that eventually more and more people will give them the flick.

      Seriously from deciding we wanted Netflix to getting it running on my PC took maybe an hour and if you've got kids the value proposition is too good to pass up

        Exactly. Netflix + unblock-us takes a grand total of 10 minutes to set up on multiple devices, and even my technically illiterate parents could do it.

      if only that would ever happen :( as others have said foxtel sure as hell wont let that happen.

    "The government anti-piracy discussion paper makes it abundantly clear that the government is looking to overturn the iiTrial decision"
    Would this not be a breach of the constitution?

    The biggest problem for me is the fact that I'm at the end of an 11km long copper cable. Content streaming is hit-and-miss at best. The sooner the government gets the NBN set up, the sooner people in my position will be able to use the legitimately available content distribution channels readily.

      11km doesn't seem that long. Possible typo?

        i get speeds from .3mbps to almost 11mbps on a 3km copper wire so no hes probably right with 11. (high speeds are at 11:30pm onwards or when i never have anything to download)

        i will still pirate purely because my internet is no where near consistent enough to even consider anything like netflix, tried it a few times on a 1 month trial and it never went into HD (even if i forced it to load HD it took 10 minutes to load 4 minutes worth of video) so its pointless for people as lucky as me.

        Last edited 29/07/14 11:13 am

    If the industry could see the problem, instead of using the 'see no evil' technique, the level of piracy in both Australia and New Zealand (because let's face it, we'll always follow our big brother country) would probably decrease dramatically. I'd pay $2 or so to watch an episode of Game of Thrones, but I won't subscribe to Sky for $60 a month for two years so I can watch 10 episodes of one program. I'll pay $15 for a season of a show if it's available to me in real-time and requires less than 10 minutes of download.

    Really, pirating content is a LOT easier than buying it legitimately down under. That fact will ensure that the piracy rates stay high and solid no matter what the Government or industries do.

    It's funny that the report starts with an acknowledgement of our higher prices for foreign digital content. They're basically saying "Uh, ok, local and international media conglomerates are screwing Australians and have basically hired us (money!) to coherce the reluctant into the screwing line. Sorry, nothing personal, just business."

    This country is run by businessmen and lawyers. That's why they sound like they never have any idea what theyre talking about. Removed the science guys because who needs them, lol. They're just professionals who understand things and can produce reports, results, and recommended conclusions for the quality of our lives. Since the quality is measured in dollars they seem to be reducing it, because you know; if it's not a business or doesn't use the law to produce money, who gives a sh!+.

    Both parties are the same and it's a two party democracy here in Australia.

    Ha. And yesterday a report on ABC24 on video rentals closing down "because of piracy". Or maybe, because of a plethora of reasons including:
    - the drastic shortening of the time between cinema release and shiny disc being available at retail which shortens the rental window to about a week...
    - the also much shortened time until it appears on Foxtel.
    - the internet being used for LEGAL streaming services

    Even if piracy was magically stopped completely, video stores would still be disappearing, because the digital future is here.

      I think part of the reason why video rental stores are closing down is over-saturation. I know a few years ago there were at least 10 different stores renting movies within 5 minutes of my home. It's not like any store had different content, the only differences were price and quantity. So the little mom & pop type ones shut down first and then some of the bigger (but still small) chain ones started closing. Now there are only 3 stores within 5 minutes.

      Note: Number of stores I mentioned are ones that I actually saw because I drove past them or used them. Wouldn't surprise me if there were more.

      Anyway, I think there is still a market for DVD/Bluray rental for a couple reasons. Some people actually like going out of the house and interacting with the real world. Bandwidth costs are still too high for heavy duty high-def movie consumption. And download speeds suck for some people. And for many technical people the idea of getting a file from a PC to a tv is too difficult (compared to popping a DVD in the player). I don't think physical stores are going away (completely) for a few years yet.

    Please let us not ignore the other part of the hypocrisy of this current government in regards to this bullshit.

    They're as big a threat to Australian content creators as piracy is.

    In their pursuit of a conservative capitalist society through the utter fabrication of a "Budget Emergency", their extensive cutting of funding from SBS, ABC, Screen Australia, and Indigenous Arts and local Arts companies means the quality and quantity of locally generated content is going to decline dramatically.

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