EFA congratulates iiNet Limited on its historic victory in the High Court in the long-running Roadshow v iiNet case. The High Court has unanimously dismissed claims made by rights owners that an ISP should act to stop copyright infringements by users or be held liable as authorising those infringements.

This means that ISPs don’t have to act on automated notices from worldwide rights societies, or threaten their users with “three-strikes” escalations.

The Chief Justice French and Justices Crennan and Kiefel noted that international approaches to discourage peer-to-peer copyright infringements varied:

The difficulties of enforcement which such infringements pose for copyright owners have been addressed elsewhere, in constitutional settings different from our own, by specially targeted legislative schemes, some of which incorporate co-operative industry protocols, some of which require judicial involvement in the termination of internet accounts, and some of which provide for the sharing of enforcement costs between ISPs and copyright owners.

Following the case, rights owners were quick to demand the Government step in to change the law – presumably to penalise ISPs or introduce a “three-strikes” regime by law. The Government indicated it wanted the closed-door discussions between rights owners and the big ISPs to continue to find an industry-based solution.

EFA has been critical of these secret talks, as commercial interests cannot represent the views of end-users and not-for-profit groups. The High Court did not accept that end-users or ISPs should have to accept automated notices as evidence, but the Government would stand by while the big ISPs and the studios hatch that deal.

Experience overseas shows that the practice of studios prosecuting peer-to-peer use is full of evidential lapses, unjust consequences, grossly-inflated damages and the crushing expense of the legal process. Yet the litigation benefits no creators or artists, just a business model that won’t keep up with the times.

As iiNet CEO Michael Malone said after the trial – the studios can stop piracy by improving online distribution:

“Mr Malone said the film industry should increase the availability of “lawful, online content” in a “timely, affordable and reasonably priced manner” to protect owners’ copyright. Increasing the availability of licensed digital content is the best, most practical approach to meet consumer demand and protect copyright,”

EFA says it’s time to stop propping-up prohibitions against online distribution of worldwide media. The millions of Australians who resort to peer-to-peer file searching don’t want to break the law, they want to change the law.

The 20th Century business model of studio distribution of copyrighted media is broken. Much entertainment media is not for sale in Australia at any price, other outlets offered only in other countries or via a single distribution channel at inflated prices.

Australia pays double for a fraction of available media for no good reason. Creators and artists also deserve a world-wide platform for their work, unencumbered by studio cartels and complex cross-licencing arrangements.

EFA calls upon the Government to resist knee-jerk toughening of copyright laws, and instead take time to ask the public how the copyright laws should serve the public and creators in a digital, global market.

Kimberley Heitman,
Secretary, EFA

Electronic Frontiers Australia (EFA) believes today’s judgement by the full bench of the Federal Court in relation to the Optus TV Now service clearly demonstrates the need for a flexible right of fair use to be introduced to the Copyright Act.

The Optus TV Now service is a cloud-based offering available to Optus mobile subscribers that allows free-to-air TV broadcasts to be recorded for viewing later on a mobile or other device.

The judgement, in the case National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59, denies Optus’ use of the ‘domestic and private use’ defence under section 111 of the Copyright Act. This ruling is based on the Court’s interpretation that Optus, rather than the subscriber was the party making the recording.

EFA believes this judgement is a blow for consumers, as it restricts their range of choices in how they watch free-to-air TV. EFA also believes this judgement will have a chilling effect on investment in cloud-based services specifically and internet-based technological innovation more generally.

EFA believes that the Copyright Act should be amended to include a flexible right of fair use, to replace the narrowly-defined and piecemeal exceptions that result in legal uncertainty and ensure that the law constrains innovation and restricts consumer choice. A flexible right of fair use is the basis for copyright law in the United States and has helped to ensure its position at the forefront of technological and service innovation.

Australian consumers have for too long had to wait for the law to catch up with new technologies and services. Australian technology and service innovators have similarly found themselves having to move to more flexible jurisdictions to avoid the legal uncertainty of the current Australian copyright regime.

EFA therefore calls on the Attorney-General to broaden the scope of the Australian Law Reform Commission’s review of the operation of the Copyright Act in the digital environment, to include consideration of a broad, flexible right of fair use.

Electronic Frontiers Australia (EFA) today welcomed the release of draft
guidelines for the classification of computer games that includes an
adults-only category.

"Australia is the only developed country where computer games with adult
themes are seized at the docks," said EFA Chair Colin Jacobs. "It is long
past the time to harmonise classification laws and give adults the freedom to
choose what to watch and play. Whether the disc goes into the DVD player or
game console, the principle should be the same."

The guidelines include an R18+ category for adults-only games. Games that do
not fit into the MA15+ category are banned for sale in Australia under the
current system. For the new guidelines to be adopted, the agreement of all
the states is required.

"The federal government has shown strong leadership in this area which we
applaud," said Jacobs. "This is something the public wants and it would be a
scandal if one recalcitrant state attorney-general derailed it to score
points or because they thought it was all too hard."

"This isn't about putting more violent games into the hands of kids," added
Jacobs. "It's the opposite, a category that is specifically forbidden to
children. In a free country like ours, giving adults that choice shouldn't be
controversial."

(more...)

Electronic Frontiers Australia (EFA) today urged skepticism about claims that piracy is costing thousands of jobs in Australia.

The Australian Federation Against Copyright Theft (AFACT) yesterday released a study,"Economic consequences of movie piracy", purporting to show that movie downloading is costing the economy over a billion dollars each year.

"We question many of the assumptions underlying this report," said EFA Chair Colin Jacobs. "The industry has a habit of crying wolf with these sorts of numbers, trying to drum up support for tougher laws. But there are many factors they don't take into account. Treating downloads as lost economic activity is flawed, and downloaders are actually some of the entertainment industry's best customers. The study also ignores the effects to the wider economy of money being spent elsewhere at Australian-owned businesses."

EFA also questions the industry's ongoing strategy of trying to defend their old business model without adapting to the realities of the digital age.

"Instead of waging war against their customers - and trying to get government help to do so - the movie industry should focus on improving its own offering, and give customers a better alternative to the peer-to-peer networks," said Jacobs. "History shows that customers are happy to pay a fair price for a good product and a good service."

EFA has provided further analysis on its web site at efa.org.au.

(more...)

Electronic Frontiers Australia (EFA) today questioned the campaign by major retailers to thwart the rise in overseas e-commerce.

Major retailers today published an open letter calling on the Government to lower the GST-free threshold on imported items, in a bid to slow the growth of online sales.

"We think this move would hurt Australian internet users and consumers," said EFA Chair Colin Jacobs. "Until a solid case is made that the economic benefits would outweigh the advantages in choice, price and convenience to shoppers, we don't think the status quo should be changed."

"The rise in online commerce has significant benefits for Australians, and will only become more important, " added Jacobs. "With the NBN on the way, any changes targeted specifically at hindering online shopping should only occur after a lot more study and consultation."

(more...)