Last week the Australian Institute of Criminology released its report on Intellectual property crime and enforcement in Australia, with some very interesting findings. I haven't had a chance to go through the whole report yet but I just wanted to make a general comment about this statement, which I find completely unsurprising (at p. 38):

An Envisional study found Australia was the second-largest downloader of online
pirated TV shows in the world (15.6%), behind the UK (18.5%) but ahead of the US
(7.3%). Australians were the leading downloaders of pirated TV programs on a per
capita basis. The report found that increased bandwidth take-up, technological
advances and a high demand for US-based TV shows are some of the reasons that
piracy has boomed. Seventy percent of the piracy occurs through BitTorrent (BT)
(Envisional 2004, BBC News 2005, Reuters 2005). The survey found that the top TV show downloads were 24, Stargate Atlantis, The Simpsons, Enterprise, Stargate
SG-1, OC, Smallville, Desperate Housewives, Battlestar Galactica and Lost (Idato
2005).

Australia is, and has always been, since colonial times, an importer or 'user' nation of copyright-protected materials, so it came as no surprise to me that we were the second-largest illegal downloader of television shows. The fact that Australia is an 'importer nation' was picked up in the Spicer Committee's report and then later with regard to the intellectual property package of the AUSFTA. Back in the ye olde colonial days, the majority of our books were imported from the United Kingdom, with many UK publishers and then eventually some colonial publishers, producing specific 'colonial editions' for sale in Australia. As Martyn Lyons has noted in a chapter of the fantastic A History of the Book in Australia 1891 - 1945, Australia earned itself the reputation as being 'the jewel of Britain's book trade empire.' (see Martyn Lyons, 'Britain's Largest Export Market', in Lyons & Arnold (eds) A History of the Book in Australia 1891 - 1945, 2001, at p. 19).

Until about five years ago, a similar statement could be made regrding Australia's importation of international television shows, predominantly from the United States and, to a lesser extent, the United Kingdom (I think The Bill and Jane Austen miniseries adaptations would comprise a lot of that market!) And, just as in the colonies Australian readers had to pay a considerable amount more than their UK counterparts to purchase the latest fiction, Australians had to wait a long time to see new episodes of their favourite TV shows.

The West Wing is an excellent example - originally it was aired on the Nine Network, who changed the time and date of broadcast so often that many viewers began to resort to Amazon.com to get the latest series on DVD. Eventually (thankfully) it was picked up by the ABC and the sixth and seventh seasons were shown weekly until the end of the series.

With examples like this, it is really no surprise that Australians have turned to the Internet to catch their favourite shows just after they have been aired in the United States. This is not to suggest that I support this type of behaviour but it poses a challenge to the free-to-air networks in Australia to change their business models, and I know a number have. In an article published yesterday in the Sun-Herald newspaper (accessible of the Sydney Morning Herald website here) it is noted that shows such as House and the US version of Kath & Kim are appearing about one-three days after they appear in the States. Yet some very popular shows, for example, Heroes, are still taking over a fortnight to get to our screens, though that is still being described as 'fast-tracked'. Not fast enough, clearly.

Labels: catherine, copyright, enforcement, infringement, piracy

The ACTA saga continues, with the Australian Digital Alliance's press release zeroing in on the impenetrable veil of secrecy surrounding negotiations of the proposed Agreement. This follows media coverage, articles, and blog posts - including those on The Patry Copyright Blog, LawFont and House of Commons - debating just how sketchy the few available details about the Agreement are, and wide appeals to allow some level of public consultation on the Agreement in Australia.

In other copyright news, the Attorney-General's Department has tabled its Review of Sections 47J and 110AA: Copyright Exceptions for Private Copying of Photographs and Films. The Review recommends that no amendments be made to the provisions for the time being, gesturing to the relatively short period of operation of the provisions as one reason for this.

In the UK, 'Mr Modchips' has survived a copyright stoush, with judgement in his favour handed down by the Court of Appeal (Criminal Div). It was found that any alleged copyright infringement would have taken place prior to use of the modchips. It will be interesting to see whether the judgement prompts legislative action, as occured following the decision of the somewhat similar case of Stevens v Sony in the High Court of Australia.

Labels: cases, copyright, infringement, legislation, piracy, review, sophia

The prospect of wanton destruction or confiscation of iPods, laptops and other devices suspected of containing copyright-infringeing content has become increasingly real, with news of a proposed international agreement on copyright policing surfacing recently.

A leaked 'discussion paper' on the Anti-Counterfeiting Trade Agreement (ACTA) on Wikileaks, since taken up by other bloggers and mainstream news outlets, has inspired exasperation and outrage in many quarters. It is expected that a draft Agreement will be tabled at the upcoming G8 summit in Tokyo, and it reads like a copyright law wish-list drafted by large record companies and movie studios.

Under the proposed Agreement, border security and other such officials in member States would have powers of search and siezure, where they have a suspicion - and mere suspicion would likely be enough - that an electronic device holds content that might infringe copyright. As Graeme Philipson (The Age) points out, because the discretionary power would be in the hands of security guards and acted upon immediately, there would be no involvement of courts or lawyers, and little chance for appeal. The copyright owner would be removed from the process of suing for infringement upon some evidence that it has actually occured.

In effect, a bunch of security guards at an airport could decide they 'suspect' you of being an infringinger and annihilate your iPod or laptop. (The fact that this could herald a whole new genre of 'profiling', a la 'terrorist suspect of middle-eastern appearance', is another matter. How do you spot a copyright infringer?)

Of more concern is that, because the security officials would also be able to determine what is or is not 'infringing', already-weak fair use/fair dealing type provisions that still offer at least some protection would arguably go out the window completely. Just picture trying to argue with humourless airport security staff that you're carrying a disk full of burned content to use for the purpose of parody. After a long-haul flight. With the prospect of all your other devices being searched as well. And then confiscated because they don't like your attitude.

Obviously, the only people who think this sounds like a great idea have been some US-based record and movie companies. Apparently, they have been throwing 'contributions' at US Congress members to 'encourage' sponsorship of the proposed Agreement.

This all has the vague stench of cultural oppression about it - it's a piece of paper being promoted by culturally and economically dominant groups. It empowers state servants to act outside the law and any kind of due process, make judgements about those crossing a border, and perform random search/seize/destroy activities without room for argument. The US will undoubtedly be urging other nations to sign up (or else). Finally, the fact that the Agreement has been drafted with little public discussion and largely kept secret does nothing to allay the sense that there are some serious problems with the way that copyright 'patrolling' is heading.

Labels: Anti-Counterfeiting Trade Agreement, copyright, fair use, film, infringement, music, piracy, sophia

News from the treacherous waters of online piracy:

The Australian Federation Against Copyright Theft will reportedly be launching a new campaign aimed at school-aged children and teens this month. In an effort to sell the idea that downloading copyright films and television shows is a no-no, children and young people will be encouraged to produce their own films, thereby convincing them that shelling out for a movie ticket and overpriced popcorn is a sign of moral fortitude (and isn’t that the goal of every teenager?).

On the one hand, educating young people about the intricacies of copyright law, and how this affects a fairly normalised behaviour among their peer-groups, is a positive step. Ever-increasing attempts by industry bodies to crack down on online 'piracy', including leaning on ISPs to start dispensing ‘justice’ on industry’s behalf, means that knowing about the potential risks is the best way to enable young people to make informed choices about their online activities.

AFACT also points out that it wants to convey how damaging to local film-making and industry investment illegal downloads can be. This blogger has some sympathy with that point – life in the film and TV industry, particularly in Australia, involves constant scratching for cash and other resources, for all but the biggest players. Continuing investment in the local industry (at all levels) depends on the commercial success of what are usually very expensive, highly speculative undertakings. While arguably it is foreign product that is usually downloaded, the overall profitablity of the sector (here and in the US) impacts how local studios and projects are funded. For example, dwindling attendance numbers at cinemas (which are never the most profitable businesses to start with) leads to rising ticket and concession prices, which leads to fewer screens showing a narrower range of product, leading to greater difficulty in getting local content out to the audience, equalling low regard and even lower funding for Australian film and tv.

On the other hand, however, allowing the message to be watered down to the equivalent of a patronising ‘Stealing is Bad’ is unlikely to move the target audience. Following the laughable In Tune campaign featuring successful musicians discussing life as a struggling artiste, it can only be hoped that the AFACT campaign demonstrates a more sophisticated understanding of its target audience and their concerns. The more emphasis on fact and an understanding of copyright law (and potential risks involved in its contravention), the better.

Still on the subject of incurring the wrath of copyright owners – in May, a US jury handed down a guilty verdict against a man charged with conspiracy to commit criminal copyright infringement. 25 year-old Barry Gitarts was allegedly a member of Apocalypse Production Crew, a group specialising in making pre-release copyright recordings available online as MP3 files for download. Typically, the RIAA could barely contain its glee at the verdict. The potential sentence for the unfortunate Barry includes up to 5 years imprisonment, a fine of $250,000, and making full restitution.

In this blogger's opinion, Gitarts would make a far more compelling poster-boy for any anti-piracy campaign than the Veronicas.

Labels: copyright, film, infringement, piracy, sophia

The music industry is once again raising its shrill voice against ‘piracy’, running a campaign featuring a video starring well-known Australian musos. Artists including members of Silverchair, the Veronicas, and Jimmy Barnes discuss the ins and outs of being a musician, under the tag line: “just paying the rent", "not living like a rock star".

Musos who might actually be having difficulty paying their rent were notably absent from the credits – presumably they couldn’t get someone else to fill in for them down at the café that day, or were too busy uploading their latest single onto Trig.

Unsurprisingly, the campaign has become controversial, inciting much media commentary (check some out here, and here) and raising the ire of Frenzal Rhomb guitarist Lindsay McDougall. McDougall originally appeared in the video, and now says it was on false pretences. According to Crikey, he was

“furious at being ‘lumped in with this witch hunt’ and that he had been ‘completely taken out of context and defamed’ by the Australian music industry, which funded the video. He said he was told the 10-minute film, which is being distributed for free to all high schools in Australia, was about trying to survive as an Australian musician and no one mentioned the video would be used as part of an anti-piracy campaign.” (Crikey)

The original clip including his input has been removed, but is archived.

And what would a debate involving artists’ rights be without a manifesto? ‘Tune out’ has obligingly penned one in response to the In Tune campaign.

Perhaps in an effort to appear marginally down-with-the-kids, the industry campaign page has this pseudo-licence, below, in its footer. It is in some ways similar to a ‘Free for Education’- style licence, and/or may invite the false expectation that they support a sort of personal "fair use" model in some circumstances:

“In Tune was produced with the support of the Australian music industry.
In Tune can be used for personal use and as a free non-commercial
educational resource. For more info, email: intunedoco@gmail.com"

So, there you have it – the kid drummer from Operator Please thinks MySpace is pretty cool, Lindsay McDougall continues to stick it to the Man, and the Veronicas look flawless even when they’re concerned and slightly annoyed.

Thank goodness for free (for educational purposes only) online videos.

Labels: music, piracy, sophia

Earlier in the week SMH reported that the Government is considering forcing ISPs to disconnect users who access pirated material (three strikes and you're out, UK style).

Kim Weatherall has done an excellent overview of the problems with this approach.

Labels: abi, enforcement, piracy

Mediadefender, a company that attempts to thwart piracy using curious techniques (for example, flooding P2P networks with spoof files) are the subject of a whole lot of criticism after thousands of company emails have allegedly been revealed to the world courtesy of Hackers, calling themselves 'Mediadefender-defenders' (see SMH article here).

Mediadefender had previously been accused of running a site called MiiVi offering downloads of copyright protected materials. Some have theorised that the site was used to entrap users. Ryan Paul at Ars Technica writes:

"The MediaDefender e-mails leaked this weekend confirm beyond doubt that the company intentionally attempted to draw traffic to MiiVi while obscuring its own affiliation with the site. The e-mails also show that MediaDefender immediately began to recreate the site under a different name and corporate identity soon after the original plan was exposed."

The emails apparently also reveal discussions with the New York Attorney-General's office and possible provision data to this agency. The emails also allegedly contain a draft contract with Universal Music Group, which details the company's pricing structure and 'services'.

Later Paul writes:

"Although many of MediaDefender's innermost secrets have been laid bare by this leak, there are many aspects of the company that remain shrouded in mystery. The ultimate purpose of the MiiVi site, for instance, is still an enigma. In some ways, the information in these e-mails raises more questions about MiiVi than it answers. It is likely that many additional details about MediaDefender's operations will be disclosed to the public as new secrets are uncovered in the e-mails. The rate at which these e-mails propagate across the Internet may also stand as a testament to the difficulty of trying to stand between consumers and their torrents."

Torrentfreak interestingly points out:

"For a business model that gets its life-blood from piracy, in a twisted way this leak is likely to help generate even more business and develop the market. Funny old world."

And all in time for 'International Talk Like a Pirate Day' tomorrow.

Labels: abi, piracy

More piracy parody clips from the Revue are available here and here.

Labels: abi, Fun, piracy

[This is a guest post, written by David Vaile, Executive director, Cyberspace Law and Policy Centre -- Abi]

House of Commons housemeister Abi reported a dreadful attack on the rights of Harry Potter fans last week as they waited for the latest and perhaps last instalment. Once hastily scanned pages of the much-awaited new Potter book were posted on a web site, taken down (oops, too late), and distributed via file-sharing as reported here, a legion of nasty little devils have been spoiling everyone's fun by up-loading snippets in the form " dies, hahaha!" in random, inappropriate but highly visible places, like in the comments to John Howard's now infamous YouTube page.

The unreleased novel's plot secrets were effectively broadcast by these cheeky killjoys to deliberately defuse the drama and anticipation for readers everywhere. So now, beyond the routinely-claimed commercial effects of digital piracy, should we add a new offence to the litany of intellectual property crimes: intentionally undermining the pleasure of the text?

Strange new network effects have also appeared due to the ubiquity of these posts, which suddenly seemed to be everywhere on the Internet. Legions of expectant Potter readers (you know who you are), on hearing of these outrages realised that there was, for the last week, probably nowhere safe to go on the net: no way to be online without the risk of being inadvertently infected with one of these guerrilla memes, indiscriminate cluster-bombs of premature revelation peppering the online landscape, little plot viruses that leach away motivation for reading the final instalment if you are accidentally exposed to them.

An unintended consequence of this new social form of Internet 'malware' may be that, in order to preserve your blissful ignorance of key plot twists until at last you have the tome in your sweaty paws, fans may be reluctantly obliged to seek temporary safe haven in real work offline, rather than risking accidental exposure tooling about on the net 'for research' as usual.

Don't go reading the paper though -- just when we were sure this pathetic plot-rot was the work of bratty 12-year-olds, along comes Sydney's Sun-Herald to restore our faith in the Fourth Estate and Old Media's race to the bottom: there, on page 10, in upside-down back-to-front writing you can only read in the mirror, were four of the (ex-)secrets.

(OK, admittedly this was after the witching hour of publication -- but the modus operandi was the same as the net culprits', curse them all.)

Labels: guest post, piracy

I finally got around to watching this video by Michael Geist and Daniel Albahary. If you haven't already, take a look:

Labels: abi, piracy

I know that many readers have been following the Hew Griffiths case, both via this blog and the mainstream media (see our previous posts here and here). For those readers unfamiliar with the case, Griffiths was arrested at his home in New South Wales in 2004 and extradited to the United States for criminal copyright infringement. Under the name 'Bandido' Griffiths was "the brains behind the international counterfeit software ring called DrinkOrDie." (from The Sun-Herald here). Griffiths was one of the first extraditions for intellectual property infringement.

According to reports in The Sun-Herald yesterday, Griffiths will definitely be sentenced this Friday. Further, it is also reported that there has been a plea bargain, which means Griffiths may/will get a reduced sentence. If you are interested in the Griffiths case, we will have a fuller discussion of the case when his sentence is handed down.

Update: Griffiths is also discussed in the context of extradition of individuals by the United States in a Sydney Morning Herald opinion piece by Mark Coultan. As Coultan notes, the Griffiths case "is trumpeted as a victory for US authorities battling software pirates around the globe but it has raised concerns about the reach of American law and the Australian Government's penchant for allowing the US to deal with Australian citizens." Read more here.

Labels: catherine, piracy

Occasionally you will come across a pirated DVD where the sound is a bit muffled, the camera is a bit shaky and the odd shadow of a person - probably requiring a popcorn refill- apppears in front of screen. Who is to blame for the shoddy camera work? Why the Canadians of course!

Read more in an article and post by Dr. Michael Geist. Geist explains why figures released by the Motion Picture Association of America and its Canadian counterparts demonstrating how Canada has become the world's leading source of movie piracy might be "more fiction that fact".

Hat tip: Roger Clarke

(Pictured: "Pirate Deck at Club Earl", Earl-What I saw 2.0, available under Creative Commons Attribution-NonCommercial-ShareAlike License 2.0 license.)

Labels: abi, piracy