Leash the Revolution

Image: Huffington Post

Yesterday, the Senate standing committee gave its support for new anti-piracy legislation in a report released by Parliament.

The Copyright Amendment (Online Infringement) Bill requires carriage service providers (CSPs) to block access to websites hosting material that infringes copyright.

This means that users entering sites such as KickassTorrents, The Pirate Bay and Project Free TV to stream or download their favourite shows, will instead by met by a notification that the site has been blocked.

The Bill will allow copyright owners to apply to the Federal Curt of Australia for an injunction requiring CSP’s to block access to foreign websites with the ‘primary purpose’ of infringing, or facilitating the the infringement, of copyright. ‘Primary purpose’ is yet to be defined.

Copyright law was implemented in the 17th Century to address the cultural changes brought about by the printing press revolution. Its objective was to protect the financial interests of authors from unlicensed selling of their works by printers and publishers. Copyright law also had a dual aim of balancing values of public learning and availability of knowledge, with providing a financial incentive for creators to make artistic works.

Sites that make creative content freely available, like Project Free TV and the Pirate Bay, can be seen to be holding on tightly to the idea that knowledge should be free with taglines such as ‘unleash the revolution’.

But with the rise in free access to creative content online, copyright holders have argued that stricter changes to copyright legislation in Australia are needed to protect their financial interests.

When introducing the Bill into Parliament, Malcolm Turnbull stated that ‘copyright protection provides an essential mechanism for ensuring the viability and success of creative industries by providing an incentive for and a reward to creators.’

Turnbull went on to say that the Bill tries to ensure there is ‘fair protection of the rights of content creators, while balancing other competing interest in the online environment’, noting that the ‘most powerful weapon’ rights holders have against copyright infringement is providing their content in a timely and affordable way to consumers.

Foxtel’s chief executive Richard Freudenstein gave his unequivocal support for the measures, saying ‘this is about blocking access to sites run by criminals and gangs: these are not crusaders for freedom; they are out to make money by stealing other people’s intellectual property.’

However, a formal cost-benefit analysis of the legislation hasn’t actually taken place yet. The committee was originally only given one and a half months to produce a report on the legislation, but it has been delayed several times until it came out yesterday.

The committee, despite approving the legislation, has not yet done a comparison between the expected benefits to rights holders and potential costs to other parties.

They have expressed concerns regarding who should bare the costs of blocking websites or disputing actions arising from websites that are blocked erroneously. Because CSP’s bear no fault under the legislation for the infringement of copyright by its subscribers, the committee says they should not be required to contribute to the cost of blocking the sites, and suggests the cost should be borne by those seeking to have the website removed.

Concern has also been expressed by Greens Senator Scott Ludlum and consumer advocacy group CHOICE, who have noted that these kinds of expensive blocking tactics are easily circumvented by  methods such as virtual private networks (VPNs) and that the changes may pave the way for future censorship of web content.

Despite Turnbull’s statement that the legislation tries to balance the competing interests of rights holders and consumers, Ludlum argues that the views of stakeholders other than copyright-holders has not been adequately taken into account.

The chief executive of Internet Australia, Laurie Patton, stated that the government should hold-off on implementing the legislation until they can gauge the effectiveness of cheap subscription-based content provider services like Netflix and Stan in reducing online piracy.

In the context of the Dallas Buyers Club decision earlier this year, it is clear that copyright law in Australia is tending towards the protection of copyright-holders’ economic interests. The state of things as they are, the new measures may be at the expense of Australian consumers desperate for cheaper alternatives to watch their favourite shows.

Here’s to hoping Turnbull heeds his own words, and such changes can be balanced by more affordable and timely access to content.

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Data Retention Laws Raise Concerns For Legal Practice

In March this year we saw the passing of new data retention laws. The laws essentially require telecommunication companies to store and retain an individual’s metadata for access and use by security or law enforcement agencies.*

Under the new legislation, the data being retained is the digital information or ‘metadata’ accompanying a communication, such as the date, time and duration of a communication, where the communication was made, and the type of communication made, i.e. email, phone call, SMS, text message, social media post etc.**

Basically, everything but the content of the communication itself.

At the time the laws were introduced, they raised obvious privacy concerns. However, in the wake of the ‘Sydney Siege’, such concerns were outweighed by the apparent need to bolster our counter-terrorism and crime-prevention strategy. The laws were passed with bipartisan support from both major parties.

But exactly how these laws will play out, outside of national security matters, is only just starting to be seen.

This week, journalist Ben Grubb won a legal battle against Telstra over access to his metadata. The Privacy Commissioner found in his favour, ruling that the metadata was ‘personal information’ for the purposes of the Privacy Act.

Even though this decision is not directly related to the data retention laws themselves, the Commissioner’s ruling is significant because it formally recognises that our metadata is personal. It is not merely a collection of random and unidentifiable numbers and codes.

On Tuesday night, the president of the Law Institute of Victoria, Katie Miller, spoke at a forum in Melbourne about how the new data retention laws are having real-world implications for legal practice.

Miller explained, ‘The metadata itself can tell very detailed stories, including, you know, what sort of legal issue you have. So if you’re contacting a family law lawyer or a divorce lawyer, it doesn’t… you don’t really need the content to know why you’re contacting them.’

Miller was mostly concerned about situations involving criminal proceedings, where a law enforcement agency with access to a Defendant Lawyer’s telecommunications data under the data retention laws can find out who they have been talking to in terms of potential witnesses. This kind of information gives the Prosecution a heads-up on the other party’s litigation strategy.

Although there are legal ways around metadata laws (like using encrypted communication services, offshore email accounts like Gmail and virtual private networks (VPNs))*** Miller’s concerns are a signal that lawyers, and others, should be aware of the metadata trace they are leaving.

Image: theconversation.com

*Note: exceptions apply for journalists

**see section 187AA of the Act

***For now

– An example of the story your metadata can tell

GST soon to be added to the price of downloaded entertainment

Image: News.com.au

Just when you thought Netflix was the cheapest fix to public access of overseas creative online content, treasurer Joe Hockey has announced a decision to put a goods and services tax on downloaded ‘intangibles’.

Under Hockey’s new so-called integrity measures, music, movies and games downloaded from overseas will include an additional GST charge.

Hockey claims the revenue raised through this tax would be worth billions. In fact, it’s surprising GST hasn’t already been attached to the services.

Confirmation of this tax is likely to be expected in this year’s budget.

HBO…Now!

Image: ABC News

Two days ago HBO launched HBO Now, an online subscription-based streaming service in partnership with Apple. Following the Dallas Buyers Club decision, those who pirate the show are probably starting to freak out a bit, because let’s face it, it’s GOT season again.

With Netflix Australia showing no signs of offering up the latest season of bloodshed due to  Foxtel’s monopoly on the series, fans of the most downloaded show in Australia would probably like some of that HBO online streaming service right about now.