Instead of pushing governments into policing ISPs, media companies should simply let us pay them for their wares. By Clem Bastow.

Clem Bastow
Supply and demand: piracy in Australia

The motivations behind the loyalty consumers show to brands are usually based on small or ephemeral things: “I like their coffee”, “I don’t have to pay for checked luggage”, “My family has banked with them for decades”. In the case of internet service provider iiNet, however, “Because they won’t dob me in to Hollywood studios at the expense of my fellow customers in a misguided crackdown on piracy” seems an altogether more compelling reason. 

The company, Australia’s second-largest ISP, has remained at the forefront of the piracy debate in Australia since the High Court upheld the judgement, in 2012, that it was not responsible for the downloading activities of its customers. Village Roadshow co-CEO Graham Burke last week accused iiNet of being “complicit” in widespread piracy, employing some colourful metaphors in the process. “iiNet are selling a car which happens to kill people on the roads, so they should be paying towards that,” Burke told tech site CNET. “It’s the car that’s faulty. In this instance it’s the fault of the car, not the driver.”

Burke’s spray followed iiNet’s latest rebuttal of a proposed “three strikes” approach to piracy, something Attorney-General George Brandis seems determined to instate. Questioned by Greens senator Scott Ludlam as to whether the three-strikes plan was still on the table, Brandis last month replied, “Australia, I’m sorry to say, is the worst offender of any country in the world when it comes to piracy, and I’m very concerned that the legitimate rights and interests of rights holders and content creators are being compromised by that activity.”

The three-strikes approach would make ISPs shoulder the burden of policing their customers’ activities, which would in turn increase the cost to the customer. Village Roadshow is not alone in pressuring the federal government to wallop ISPs on its behalf – 21st Century Fox, one of the arms of Rupert Murdoch’s giant media octopus, has also been throwing its weight around. 

It’s expected that such legislation would involve a graduated response in which users would receive up to two warnings (generally, messages from their ISP) before receiving a penalty. As to what that penalty would entail, details are hazy, but similar schemes employed internationally have included reduced bandwidth, fines and disconnections. It sounds tidy enough, but the reality – demonstrated in France and New Zealand, among other markets – is a tangle of bureaucratic red tape that results in scant convictions and serves mostly to increase the cost of internet access. 

The continued local focus on “combating piracy” – with language designed to make us think about the poor artists we’re stealing from, and not the immense corporations whose interests are, in fact, the issue at hand – is remarkable because it demonstrates a rather stark refusal to listen to the (potential) consumers in question. 

It’s amusing that Brandis, and Murdoch and his contemporaries, claim to care about the content creators’ rights (that is, the 21st-century update on the old “taping music hurts the artists” line), when the media conglomerates’ stingy, piracy-baiting business acumen is mystifying even to the content creators themselves. 

Struck down recently by the flu, I relished the opportunity to catch up on some TV viewing; specifically, the latest season of Louie. And, since the season doesn’t air on Australian television (on either free-to-air or by subscription), isn’t on iTunes locally, and hasn’t made it to Netflix yet (for which I also pay), one choice remained: stream it illegally. 

It wouldn’t be news to the series creator, Louis C.K., who recently told the world about Australia’s illegal viewing habits. “In Australia, mums and dads pirate video, because we’re not letting them buy it,” he said. “We’re keeping it from them. Everybody in the world is like, ‘Take my fucking credit card and just let me have the thing, and I’ll pay. But if you’re going to be a pain in the ass, fuck you! I can steal all of it.’ ”

The market continues to shoot itself in the foot, then complain that piracy is the key cause of its injury. Where Game of Thrones was once available via iTunes for a reasonable sum (about $29 for a season), the deal brokered between HBO and Foxtel ahead of this year’s fourth season meant the only way to legally watch the show locally was to pay upwards of $75 a month for a Foxtel subscription package that includes the Showcase channel on which Thrones airs. 

My own situation is an example of the flaw in Brandis, Turnbull and co’s approach to combating piracy: with an iTunes account and a Netflix subscription, that’s two ways I am willing to cough up money to see Louie. I have paid C.K. directly when, in the past, he’s offered specials or recordings that were available internationally. Were a local version of subscription services such as Hulu Plus or Amazon Instant an option, I would gladly sign up. 

In response to Brandis’s most recent statements, iiNet’s chief regulatory officer Steve Dalby countered: “It is an acknowledged fact that the American market has seen a reduction in file sharing at the same time that content has been become available ... Copyright holders have shown us that they’re not interested in new models for Australians, despite the success of services such as Netflix, Amazon and Hulu in the USA (and other markets, including a large number of Australians bypassing these restrictions using VPN).”

As alluded to by C.K.’s “take my fucking credit card” line, there is a willingness among Australians to obtain content legally. The federal government and rights holders’ approach to piracy is to clamp down on the methods of piracy, not consider the reason behind it. The great irony in this is that in doing so, they cheat themselves out of a possible wellspring of money. Which, ultimately, is precisely what they mean when they say “intellectual property” or “copyright”.

This article was first published in the print edition of The Saturday Paper on July 5, 2014 as "Supply and demand".

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Clem Bastow is a Melbourne-based writer and critic.

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