Introducing Ellen Broad:
Hello Troppodillians. As some of you know, I am the patron of the Australian Digital Alliance which, broadly speaking, represents users of copyright protected products. Its members include Google, Yahoo!, each of the national cultural institutions, libraries, schools, universities and individuals. It is one of the few organised voices trying to make the views and interests of copyright users known to the community and to government.
Ellen Broad is the Alliance’s copyright law and policy adviser and she’s energetically embracing her role. She’s worked on both sides of the copyright fence, with a background in creative writing and publishing before moving to Canberra and working for the National Film & Sound Archive and the National Library of Australia. She is in short, doing a great job. Given that she updates members on various IP issues of note, I invited her to post any items of more general interest on Troppo. And this is her first post.
“The basic conundrum for the copyright holder”, Justice Hayne commented on day 1 of the iiNet High Court Hearing, “is that…the prevention of unauthorised sharing of copyright works ultimately depends upon the individual choice of the user of the Net.” All that an ISP can do, he observed, to have an effect on the individual user’s choice, is switch off.
The dispute between iiNet and AFACT in the High Court is ultimately over who should bear the burden of policing copyright infringement by users on the internet. It’s expensive and ineffective to take action against individuals implicated in unauthorised file sharing, and so the content industries have worked hard to shift the burden of preventing copyright infringement to ISPs. To succeed in this particular case, AFACT needs to show that in failing to take any steps at all against identified copyright infringements by users of their services, iiNet effectively authorised the continued uploading of copyright works on their watch.
This would be a significant expansion of the doctrine of authorisation in Australian copyright law, and AFACT have done their best to reframe it in terms of negligence on the part of ISPs – that ISPs had a “duty of care” or “obligation to prevent” copyright infringement.
Whether the Australian copyright legislation confers a responsibility on ISPs to take positive steps to prevent copyright infringement is a question for the High Court to answer. Still, any discussion of a purported duty of care owed by ISPs begs the question: to what extent should ISPs bear the burden for business choices made by the content industries?
“Is not the real conundrum lying behind all of this,” Justice Crennan asked, “that in an ideal world for the copyright owners, everyone who wants to watch a film will go and pay $30 for the DVD?”
“The truth probably is,” she mused, “that users who want to download films would not mind their service charges increasing by a margin in order to do that lawfully.”
iiNet must be feeling a bit hard done by in this case. iiNet actively encourages users to access legitimate content through their service Freezone, which enables users to download from sites like iTunes and Netflix without it counting towards their monthly quota. Even if users max out their monthly quota by other means, they can still download content from sites in the Freezone at full speed – all at cost to iiNet.
Asked by the High Court if users were ever put in a position where they could not access content lawfully, iiNet accurately pointed out that the availability of legitimate content through Freezone is dependant on decisions made by the movie studio, record company or publisher.
We’ve all heard the demands made of content industries to embrace new business models, relax territorial licensing, ensure same day release dates across jurisdictions and offer more attractive pricing of digital content. We can complain as much as we like, but the availability and affordability of content is ultimately the copyright holder’s decision.
Whether ISPs like iiNet, who encourage users to access legitimate content that is available, should also be deemed responsible for the unlawful downloading of content that isn’t, is another question altogether. To my mind, it’s a subversion by the content industries of privileges given to them under copyright law.
In the past decade, a number of measures have been introduced into Australian copyright legislation to protect the interests of the content industries in the internet environment. Without increased protections, (like criminal penalties for the circumvention of digital locks), the content industries argued that they could not make their works available to the public. The point of stronger protections is to provide businesses and individuals with the confidence and security to undertake activities deemed too risky without them.
Despite succeeding on a number of demands for stronger copyright protections, content industries have continued to resist making content available for all users. Consumers in Australia still wait weeks and sometimes months to access the same content available readily in other jurisdictions, and generally at higher prices. Despite the convenience and affordability of iTunes rental, for example, movie studios still choose only to make new releases available for sale outright. The film Kung Fu Panda 2 will cost a resident in Australia $24.99 to download, while it’s only $14.99 in the US. Knowing you’re paying $10 more than the next person for the same digital file makes other, unauthorised options to obtain the movie more attractive.
Even attempts at alternative content delivery models tend to come with outlandish price tags. Take Universal Pictures’ recent foray into video on demand (VOD), allowing consumers to download new cinema releases from the comfort of their own homes. For a mere $59.99 (!) consumers could have watched Bruce Ratner’s new action comedy “Tower Heist”, featuring Ben Stiller and Eddie Murphy, from the comfort of their own homes only three weeks after its cinematic release. As New Yorker film critic Anthony Lane puts it:
“Sixty bucks! For a Brett Ratner movie! It’s like one of those cafés in Weimar Germany where a glass of beer cost you four billion marks.”
All iiNet can do in the current environment for digital content is direct users to sites like iTunes and encourage them to take advantage of the Freezone. They can’t control consumer choice as to how much they’re willing to pay for legitimate content, how long they’re willing to wait for it or whether they’ll resign themselves, in the internet environment, to not being able to access content at all.
So if one of iiNet’s customers decides that $24.99 is too much to pay for a movie, let alone $59.99, and chooses instead to download it unlawfully, is it fair that the ultimate responsibility for the unauthorised download lie with iiNet?
AFACT argue that ISPs have the power to prevent copyright infringement and should take reasonable steps to reduce it because they control a user’s access to the internet. By this logic, the question needs to be asked: at what point will content industries take their own reasonable steps to reduce copyright infringement? After all, they control the cost and lawful access to the content.