Big brother, draconian laws, corporate pandering, guilty until proven innocent and all that. Or maybe not so much. With the passing of the Copyright (Infringing File Sharing) Amendment Bill it would seem that, like so many recording companies and movie studios, our government is refusing to move with the times and instead have decided to stand and fight the inevitable digital revolution. The new law might not be as big a deal as it appears on face value, but it still goes nowhere to addressing the issue of trying to stuff a digital world into a physical pigeon hole.
There was an uproar back in 2009 when an amendment bill (section 92A) was passed that allowed ISPs to cut off a person’s internet access if they suspected them of downloading illegal content, putting the onus of proof on the accused. One of the courageous acts of defiance prompted by this law change was people all over Facebook changing their profile photos to black squares (come on the internet, you can do better than that). This law sought to punish the downloading of illegal content without addressing the problems that caused it, such as hyper-inflated movie prices. To put it in physical world (‘meatspace’) terms, it’s like being arrested for stealing a television and then having to provide a receipt. Of course, it was never intended to be used on every individual who had a sudden desire to watch Joe vs. the Volcano but didn’t want to fork out $3 for a weekly rental (commonly known as a ‘Tom Hankering’). Laws like this are most likely designed to scare people into not doing things by promising more than they can realistically achieve, rather than punishing every possible individual until society has been cleansed.
The new amendment has seen section 92A scrapped and a swathe of changes made to make it slightly harder for people’s internet access to be cut off. A rights holder (Paramount, Sony BGM etc.) informs an IPAP (ISP redefined as an ‘internet protocol address provider’) that they have identified an IP address linked to a specific illegal download. The IPAP then issues the holder of the IP address a warning notice. These warning notices expire after a maximum of 9 months. After three non-expired warning notices an enforcement notice is issued by the IPAP. The IP address holder can then challenge it, in which case the rights owner is notified and can choose to reject the challenge. If rejected it then goes to the Copyright Tribunal and if the IP address holder is found “guilty” they can be issued with a maximum fine of $15,000 and can have their internet account suspended if the Tribunal decides that’s not a completely dickish thing to do.
So, in order to be fined you have to download enough content for the rights holder to take notice. A feat in itself given this country’s extremely low data allowances. You then must do that twice more within 9 months, not including the illegal downloading against the same rights holder within 28 days of the detection notice they issued because they aren’t allowed to issue two notices within that period. You can always challenge them and delay the process, bringing that 9 month expiry ever closer. Once you’ve been issued the enforcement notice and end up in court you’re in trouble. This is where the IPAP will demonstrate that your morally reprehensible acts of piracy have ruined the lives of countless children and are solely responsible for the degradation of modern society, at which point the judge will fine you the amount you saved by not going to the movies and force you to take up one of the other IPAPs offers for free connections and wireless modems. To avoid the horrific fate of having to deal with customer service every 9 months, here are some tips:
* Diversify - download from a number of rights holders so you’re never downloading enough from a single entity to arouse their suspicion.
* Change tack - if you get issued a warning notice, target the rights holder responsible like the rabid pirate they think you are for 28 days straight. Download their entire catalogue of music and movies and then avoid them for 9 months.
* Sleep around - If you really want to continue downloading so much material that every rights holder in the world is issuing you notices left and right, have more than one internet account. They can only target IPs; your details are never released to the rights holder. In fact, when you get sent that second warning notice, change ISP. After the next two warning notices, change ISP. You can pick your favourite two and flit between them every 9 months.
So, other than the fact that this sort of law does nothing to force the studios to rethink their distribution plan or lower prices of existing online content to reduce the need to turn to file sharing, it probably won’t harm the ‘casual pirate’. There may be concerns about rights holders submitting notices for every IP address they find on BitTorrent, but there is a fee associated with each submission payable to the IPAP by the rights holder. It wouldn’t make financial sense for them to target every IP address because they could quickly lose any profits they would hope to gain from legitimate sales.
Much like the amendment to section 59 didn’t see parents hauled off in droves for giving a light smack to a child, and was never intended to, this bill will not see you punished for your illegitimate collection of Bieber tracks. These high-profile bills are most effective in the way they raise awareness and make people second guess themselves before committing what they now perceive to be a crime. Unlike the amendment to section 59 however, which was a huge leap forward in the way society operates, this bill merely clings to the notion that a digital copy of a song or movie is exactly the same as a CD or a DVD. I’ve argued for years that ‘piracy’ doesn’t hurt the artists, it hurts the executives. Musicians make the majority of their money from concerts, so they benefit from more people hearing their music by any means. Those responsible for making movies, (actors, directors, best boy grips) still get paid enough money to make Powerball look like a meat raffle (maybe not the best boy grips, who would most likely still be happy with a meat pack). That might not be the case for independent movies I suppose, but the more obscure the movie, the more likely those that watch it paid for the privilege to do so.
iTunes is great for music, but it’s still only marginally cheaper than a physical CD, yet there are no specific production costs per unit sold (except for data storage, which is cheap but not free). Radiohead should have shown that people will pay for music even if they don’t have to. They made $3.6 million without a record company or even a pricing structure. At an average of $3 per album download ($7.5 for those who actually paid) they earned more than twice as much per album as most artists make through traditional CD sales. It might be different for new artists that don’t already have a fan base, but how many more albums would you buy if they were only $3? iTunes would also be great for renting movies if they weren’t only a dollar less than the video store and took less than 18 hours to download. I can download a movie from BitTorrent in about half an hour. If that cost me $3 each time I wouldn’t download any less. A great example of low price equals high profit is the App Store. At $1.29 per app I don’t know many people that hesitate to download something new on a regular basis. The developers get 70% of that. Angry Birds reached 50 million downloads in December 2010. At 90c per download, that’s $45 million they’ve made in a couple of years. That’s $61,643 a day, which is more than I earn in a week. There are plenty more success stories out there too. Maybe not quite to that extent, however if someone takes 6 months to write an app that reaches 100,000 downloads they make $90,000 and all it cost them was time. Many millions have been made out of people sitting on their couch with nothing good to watch on TV and $1.29 burning a hole in their bank balance.
The biggest thing holding back the music and movie industries from fully embracing this sort of pricing structure is that record companies and movie studios are scared of losing profits and becoming obsolete, so they fight to keep it exactly the way it is, potentially taking money away from the artists they claim to be protecting. They do this by working with lawmakers to produce such things as the Copyright (Infringing File Sharing) Amendment Bill. As long as these sorts of laws are perpetuated, digital media will be forced into a style of marketplace and pricing structure that was designed for physical items requiring production, distribution and marketing. All of that takes place digitally now. Rethink the industry to reflect the product; don’t change laws to force the product into the existing thinking. You wouldn’t hear of a law that prevented the development of alternative fuels to protect the profits of oil companies, or legislation that banned the sale of gardening tools to stop people growing their own food. Freely downloading digital media is not the same as stealing a physical item; I hope that in the near future the lawmakers will come to realise that. In the mean time, don’t worry too much about the new law changes. The copy of Twilight your daughter is currently downloading is just as unlikely to get you prosecuted as clipping her round the ear for watching it; and only one of those things is morally reprehensible.