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Tony Poulos

Do Aussie piracy controls violate net neutrality?

As featured in DisruptiveViews

Australia is an extreme country. It has extremes of weather, it’s extremely large, it’s extremely far away from most other places in the world and its governments are renowned for making some rather extreme decisions at times.

But, strangely enough Australians – made up of all nationalities, creeds and religions – are basically conservative people that, according to their government, readily succumb to digital piracy.

Now, that might sound like a sweeping statement, but is of such great concern to the Australian government that is making an example of many of its online ‘criminals’ by bringing in arcane laws in support of content owners. And these laws seem to fly in the face of net neutrality rules the USA and others are trying so hard to get adopted.

In 2011 Australian ISP, iiNet, successfully defended itself against accusations by the big movie houses that it was complicit in its customers’ breach of copyright using technologies such as BitTorrent. It also defended a subsequent appeal. But that didn’t stop the content providers from lobbying parliamentarians and litigating once more to set an example, via the Australian courts, for other wayward countries.

In April this year, the same Federal Court forced iiNet to hand over details of customers who had allegedly illegally downloaded and shared the film Dallas Buyers Club so that legal action could be taken against individuals that were deemed to be ‘seeding’ to others.

Not satisfied with that ruling, the government earlier this month forced anti-piracy legislation through parliament allowing rights holders to go to a Federal Court judge to get overseas websites, or “online locations”, blocked that have the “primary purpose” of facilitating copyright infringement.

What the government and content owners failed to do was determine why people are driven to piracy in the first place and what else could be done to manage it rather than introducing sweeping laws that are ill-defined, easily circumvented and in clear breach of everything net neutrality stands for.

However, Australian consumer group, CHOICE, did bother to survey 1046 people and discovered that piracy was not as widespread as thought, with only about a third of the population ever having downloaded, streamed or watched pirated TV shows or movies. The CHOICE research suggested that consumers couldn’t find what we’re looking for at a fair price, but were willing to pay for content if it was locally available and the offer is reasonable.

“A substantial proportion of people are pirating because of the high cost of content in Australia, and the time differences between releases here and overseas,” said CHOICE Director of Campaigns and Communications Matt Levey.

Startling figures that came from the research showed that 50% of pirates said that their main reason for pirating was price, and 41% said it was because they wanted specific content sooner than available in Australia.

The figures show just how naïve content providers are by tracking down and suing those ‘pirates’ as it turns out they are their best ‘paying’ customers as well. People who pirate at least monthly are significantly more likely than the average person to go to the movies or cinema. 36% of the general population go to the movies at least monthly, compared with 56% of people who regularly pirate.

Many Australians subscribe to ‘legitimate’ overseas services like Netfix by using VPN or IP spoofing software to hide their location but they are probably breaching digital rights management rules by doing so. Even though overseas sites may know this – how many actually block paying customers and turn a blind eye to this type of activity?

All the above raise a number of points and set precedents that other countries may wish to either adopt, or avoid, depending on how they feel about the rights of the individual, the rights of content holders and the rights of free access to the internet being heralded by the FCC’s net neutrality rules.

Is the Australian government snubbing its nose at net neutrality by intentionally blocking sharing sites rather than proceeding with legislation that in other countries may be laughed at? Do content providers or ISPs have the right to use sophisticated software like that from German-based pirate-hunting firm Maverick Eye UG used in Australia to identify those who were sharing movies online?

Maverick Eye joined torrent ‘swarms’ that were sharing Dallas Buyers Club and then tasked its software to log the Internet Protocol (IP) addresses of those who distributed the movie without authorisation and in breach of copyright laws. But is this software, a type of deep-packet inspection, breaching net neutrality rules brought in specifically to prevent activities like ‘throttling’ and limitation of service?

Will Australia’s rather extreme legislation come back to haunt it via the many free trade agreements it has entered into? And how long before disgruntled consumers start asking why they are being treated differently than those in other western countries, especially in the supply and pricing of content such as movies?

Judging from the lack of countries jumping in with similar ‘extreme’ legislation Australia may find itself between a rock and hard place – very popular with content (and media) moguls like Rupert Murdoch, but at odds with voters and net neutrality advocates.