It's been three years since Australia adopted a national copyright blocking system, despite widespread public outcry over the abusive, far-reaching potential of the system, and the warnings that it would not achieve its stated goal of preventing copyright infringement.
Three years later, the experts who warned that censorship wouldn't drive people to licensed services have been vindicated. According to the giant media companies who drove the copyright debate in 2015, the national censorship system has not convinced Australians to pay up.
But rather than rethink their approach -- say, by bringing Australian media pricing in line with the prices paid elsewhere in the world, and by giving Australians access to the same movies, music and TV as their peers in the US and elsewhere -- Australia's Big Content execs have demanded even more censorship powers, with less oversight, and for more sites and services.
The current Australian censorship system allows rightsholders to secure court orders requiring the country's ISPs to block sites whose "primary purpose" is to "is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia)."
Under the new proposal, rightsholders will be able to demand blocks for sites whose "primary effect" is copyright infringement. What's more, rightsholders will be able to secure injunctions against search engines, forcing them to delist search-results that refer to the banned site.
Finally rightsholders will be able to order blocks for sites, addresses and domains that provide access to blocked sites, without going back to court.
Taken together, these new measures, combined with the overbroad language from 2015, are a recipe for unbridled, unstoppable censorship -- and it still won't achieve the goals of copyright law.
The difference between "primary purpose" and "primary effect"
The 2015 censorship system required rightsholders to prove that the targeted sites were designed for copyright infringement: advertised for the purpose of breaking the law.
But the new system only requires that sites have the "primary effect" of copyright infringement, meaning that businesses will have to police the way that the public behaves on their platforms in order to avoid a ban.
In thinking about the "primary effect" test, it's worthwhile looking at how big media companies have characterized general-purpose platforms and their features in other copyright battles.
YouTube is the largest video-sharing site in the world, with several hundreds hours' worth of video added to the service every minute. The overwhelming majority of this video is not infringing: it is, instead, material created by YouTube's users, uploaded by its creators and shared with their blessing.
In 2010, Viacom sued YouTube for being a party to copyright infringement. It was a colorful, complex suit full of comic profanity and skullduggery, with an eye-popping $1 billion on the line. But one detail that is often forgotten is that Viacom's claim against YouTube turned, in part, on the fact that YouTube allowed users to make their videos private.
Viacom's argument went like this: If people can mark their videos as private, they might use that feature to hide infringing videos from our searches. You could upload a movie from Viacom division Paramount, mark it as private and share it with your friends, and Paramount would not be able to discover the infringement and take it down. Viacom’s argument was that every video you post should be visible to the world, just in case it infringed their copyright.
This is one example of how the copyright industry thinks about the "primary effect" of online services: Viacom said that once YouTube knew that privacy flags could be used to escape copyright enforcement, that they had a duty to eliminate private videos, and their failure to do so made YouTube a copyright infringement machine.
Eight years later, YouTube is still the epicenter of the debate over how far a platform's duty to monitor and censor its users goes. In the EU, the big entertainment companies are on their way to enshrining "Article 13" of the new Copyright Directive into law for 28 countries comprising more than 500 million residents. Under this proposal, YouTube would have to extend its current, voluntary system of pre-emptively censoring videos that match ones claimed by a small cohort of trusted rightsholders, and replace it with a crowdsourced database of allegedly copyrighted works, to which anyone to could contribute anything, and censor anything a uploaded by a user that seems to match a blocklisted item.
The rhetoric in support of these filters centers on YouTube's alleged role as a copyright infringement facilitator: whether or not YouTube's owners intend for the service to be a black market for infringing material, big content says that's what they have become, because among the billions of videos YouTube hosts, are thousands of infringing ones.
This is the norm that the entertainment industry is pushing for all over the world: a service's "primary effect" is infringing if there is a significant amount of infringement taking place on it, even if "a significant amount" is only a small percentage of the overall activity.
Search Engine Censorship: What We Don't Know We Don't Know
The new Australian copyright proposal allows rightsholders to dictate search-results to the likes of Bing, DuckDuckGo, and Google. Here, the copyright industry is tacitly admitting that blocking orders don't actually work: as they were told in 2015, merely blocking something at the ISP level won't stop copyright infringement, such blocks are easy to get around (with a VPN, for example).
The copyright industry's 2015 position was that blocking worked. The 2018 position is that blocking doesn't work: you have to keep the existence and location of infringing files a secret, too.
The 2018 position has all the problems of the 2015 position, and some new ones. Users can still use VPNs to see search-results that are censored in Australia, and also use the VPNs to bypass their ISPs' blocks.
But because search-results are blocked in Australia, ordinary Australians trying to do legitimate things will not be able to know what is blocked in their country, and will thus not be able to push back against abusive or sloppy overblocking.
This is doubly important because the operators of the sites that are blocked are also not represented in the process when the blocking orders are drafted. The rules don't require that anyone argue in favor of sites that are facing blocking and search delisting, they don't require that the owners of sites facing a block be notified of upcoming proceedings, and the best the public can hope for is that an ISP might show up in court to argue for their right to see the whole web.
Combine this one-sided kangaroo (ahem) court with search-blocking and you get a deadly mix: unchecked censorship that's also invisible.
But it gets worse: the 2015 and 2018 censorship systems don't limit themselves to censoring sites that infringe Australian copyright: they also ban sites that violate any copyright in the world.
Australia was recently pressured by the USA into extending its copyright term from the life of the author plus 50 years to "life plus 70," meaning that works that are legal to share in the EU (where it's still life plus 50) might be illegal to share in Australia.
But other countries like Mexico and Jamaica have extended their copyrights to the even more farcical "life plus 100" term (or 95, in Jamaica), meaning that US sites hosting public domain works might still be infringing copyright in Acapulco and Montego Bay. These sites are legal in the USA, legal in Australia, but illegal in Mexico -- and since Australia's copyright system bans accessing a site that violates any country's copyright (2015) or even listing it in a search engine (2018), Australia's entire information infrastructure has become a prisoner to the world's worst, most restrictive copyright.
VPNs are next
In 2015, the entertainment industry insisted that blocking orders would solve their infringement problems. In 2018, they've claimed that search-engine censorship will do the trick.
But the same tool that defeats blocking orders also defeats search-engine censorship: Virtual Private Networks (VPNs). These are much-beloved in Australia, a country that is a net importer of copyrighted works and a third-class citizen in the distribution plans of big Hollywood studios, meaning that Australia's versions of Netflix, iTunes and other commercial online entertainment services get the top movies, TV shows and music later than most of the rest of the English-speaking world.
Australians have come to rely on VPNs as the primary way to legitimately purchase and watch material that no one will sell them access to in Australia. By buying VPN service and subscriptions to overseas online services, Australians are able to correct the market failure caused by US and British companies' refusal to deal.
The entertainment companies know that a frontal assault on VPNs is a nonstarter in Australia, but they also hate this evasion of regional release windows. Three years from now, after the same people who defeated blocking orders with VPNs have shown that they can defeat search-engine censorship with VPNs, the same companies will be back for Australians' VPNs.
They don't even need to take all the VPNs: as the Chinese government censors have shown in their dealings with Apple, a well-provisioned national firewall can be made compatible with VPNs, simply by requiring VPNs to share their keys with national censors, allowing for surveillance of VPN users. VPNs that aren't surveillance-friendly are blocked at the national firewall.
In 2015, the entertainment companies convinced Australia to swallow a fly, and insisted that would be the end of it, no spiders required. Now they're asking the country to swallow just a little spider to eat the fly, and assuring us there will be no bird to follow. The bird will come, and then the cat, the dog and so on -- we know how that one ends.
More Censorship, Less Oversight
The final piece of the new copyright proposal is to allow rightsholders to demand blocks for sites, services, addresses and domains that "provide access to” blocked sites, without a new court order.
This language is potentially broad enough to ban VPNs altogether, as well as a wide range of general-purpose tools such as proxy servers, automated translation engines, content distribution networks -- services that facilitate access to everything, including (but not only) things blocked by the copyright censorship orders.
If this power is wielded unwisely, it could be used to block access to major pieces of internet infrastructure, as recent experiences in Russia demonstrated: the Russian government, in its attempt to block access to the private messaging app Telegram, blocked millions of IP addresses, including those used by major cloud providers, because they were part of a general-purpose internet distribution system that Telegram was designed to hop around on.
So this is the kind of order that you'd want used sparingly, with close oversight, but the new rules make these blocks the easiest to procure: under the new proposal, rightsholders can block anything they like, without going to court and showing proof of infringement of any kind, simply by saying that they're trying to shut down a service that "provides access" to something already banned.
Australia has become a testbed for extreme copyright enforcement and the entertainment business in the twenty-first century. On the one hand, the Australian experience with legitimate copyright businesses has shown an unmistakable link between offering a wide selection of copyrighted works at a fair price and a reduction in infringement. Most Australians just want to enjoy creative works and are happy to pay for them -- provided that someone will sell them those works. If the works aren't on sale, then the Australian experience shows us that you need a constant, upwards-ratcheting censorship and surveillance system to check this natural impulse to participate in common culture.
The entertainment industry lobbyists calling for this system insist that they are in the grips of an existential struggle: without broad censorship powers (they say), they will go out of business. But a look at the effect of fair offerings and the Australian willingness to pay for VPNs to buy media abroad demonstrates that what the entertainment companies want is to control legitimate purchases, not unfair copyright infringement. The industry can eke out a few extra points of profit by delaying the release-windows in Australia and price-gouging Australian customers, and to prevent customers from evading these tactics, they propose to censor and control the entire Australian internet.
This is a bad deal for Australians. Even if (for some reason) you trust the entertainment companies to wield these powers wisely, the Australian experience has shown that copyright trolls are quick to seize any new offensive weapons the Australian government hands them to blackmail Australians in ways that don't make one cent for creators.
For the world, Australia is a powerful cautionary tale: a low-population country where a couple of dominant media companies have been allowed to make internet policy as though the major use of the internet is as a video-on-demand service, rather than as the nervous system for the 21st century. The regulatory malpractice of 2015 begat even harsher measures, with no end in sight.
This is a prototype for a global system. Australia may be a net copyright importer, but it is in imminent danger of becoming a net copyright censorship exporter, with the Australian model being held up as a proof that the entire world need subordinate its digital infrastructure to the parochial rent-seeking of a few entertainment companies.