When the Australian government first began requiring Internet Service Providers (ISPs) to block websites in 2012, Australians were assured that it would only be used to block the "worst of the worst" child pornography. This week, a discussion paper was issued that proposes to extend this Web blocking regime, so that it would also block sites that facilitate copyright infringement. Funny how that always seems to happen.
You may remember a similar website blocking scenario in the proposed Stop Online Piracy Act (SOPA), which prompted an unprecedented online uprising from Internet users in the U.S. and around the world, that sent the bill down in flames. While the Australian proposal is not the same as SOPA (the blocks would have to be approved by a court, for example), it would share many of the same dangers, such as the rubbery definition of sites "the dominant purpose of which is to infringe copyright."
Also familiar is the old canard being used to justify these new measures, that "piracy is theft"—or in case we were too dense to grasp that metaphor, that it "is exactly the same theft as walking into a DVD store and putting a DVD in your bag and walking out without paying", according to Minister for Communications, Malcolm Turnbull.
Of course, copyright infringement is not theft, because copyright is not a kind of property capable of being stolen. Copyright is a limited set of rights that gives the owner the ability to prevent the public from making some uses of creative material for some length of time.
If a user steps over the line, sometimes a fuzzy one, that separates the legal use of copyright works from those that require a license—for example, if they record a favorite TV show using a PVR (which is legal in both Australia and the United States, for time-shifting purposes) but then save it to watch multiple times (which may not be, at least in Australia), then it is ludicrous to suggest that the user has thereby become a thief. Rather, they may have committed copyright infringement.
If they are honest with themselves, our lawmakers know this—because in Australia (and the U.S.), copyright infringement isn't defined in law using the word "theft" or the same legal standards as theft or larceny. Yet content industry lobbyists have found it to be a convenient metaphor to use to justify heavy-handed penalties for infringement.
Another of those heavy-handed penalties being considered under the Australian proposal is making ISPs liable for users' infringements, unless the ISPs have taken "reasonable steps" to discourage or reduce online copyright infringement. This proposal would effectively undo the effects of the landmark Roadshow Films v iiNet decision of Australia's High Court, which decided in 2012 that ISPs were not liable for failing to suspend or terminate accounts of its users whom rightsholders claimed were engaged in infringement.
Exactly what form these reasonable steps might take remains open for discussion, but a system of warning notices, possibly followed by the throttling of access speeds, has been proposed, and the discussion paper specifically mentions the Copyright Alert System in the U.S. as a model for this. Such a system would entail the surveillance of Internet users by private actors, who would compile a secret database of those suspected of downloading material without authorization.
A justification that the discussion paper gives for this proposal is that Australia's obligations under its Free Trade Agreements with the United States, Singapore and South Korea require it to provide a legal incentive to ISPs to cooperate with rights holders to prevent infringement on their systems and networks. But Australian copyright scholar Matthew Rimmer, who has been sounding the alert about the government's plans, describes as controversial the claim that Australia's trade obligations would require it to take this step.
EFF has long contended that these sorts of free trade negotiations, which take place behind closed doors, and in which copyright users' rights are traded off against the promise of concessions on trade for agricultural and manufactured products, are an entirely inappropriate way for countries to craft copyright laws that meet the needs of their citizens.
One of the dangers of tying copyright laws to trade agreements it that they can reduce a country's flexibility to change its laws when unforeseen circumstances arise—for example, some commentators claim that the U.S. is constrained from permanently legalizing cell phone unlocking.
Public comments on the Australian proposal to introduce website blocking for sites that infringe copyright, and to require ISPs to take steps to deter copyright infringements by users, will be received until September 1. Here is the website with details of how to submit your comments.
At the same time, given the lack of oversight and transparency of the practice of website blocking by Australian government departments generally, there is a separate enquiry into the use of Section 313 of the Telecommunications Act for this purpose—for which the deadline is August 22.