EFA: The mandatory blacklist and computer games

Please feel free to spread the word. I’d like to reinforce a couple of extra points here, though.

For one, this latest expansion of the scheme has to be seen in the wider context of the plan as a whole. Sold to the electorate as a plan to protect children, it actually only targets websites that an adult is likely to encounter, and applies indiscriminately to all Australian homes and businesses. Due to technical limintations, it can’t and won’t stop the traffic of child abuse material. The blacklist is secret, there is no appeal, and what goes on there is controlled by Government. The potential game ban is only one alarming aspect of the plan as a whole.

EFA has repeatedly warned that, regardless of its intial scope and intentions, any government-controlled blacklisting scheme will expand in time. It’s simply impossible to imagine this and future governments resisting the temptation to add content to the list when politically expedient or in response to powerful lobbies. Even if the blacklist was just targeted at child abuse material, it would soon expand to include hate speech, violent games, copyright violation, incitements to crime, adult pornography, and any other political panic of the day.

So far, however, the blacklisting scheme only applies to web sites. This means that online games such as World of Warcraft or Second Life would continue to work - only web sites making them available would be banned. Due to the limitations of filtering technology, you will be able to circumvent the filters and get to those, too. EFA will show you how - as long as the Government does not criminalize such circumvention.

Bearing in mind the ineffectiveness of blacklisting in actually protecting children or stopping illegal material, it’s hard to argue that the censorship scheme will help children, Australian adults, or the speed and cost of internet access. Banning popular games would just add insult to injury. Let your elected representatives know what you think.

We were able to put the administrators of ContestedFooty.com in touch with a local solicitor who was willing to donate the time to examine the AFL’s claims and demands. I am now happy to report that ContestedFooty.com has advised the AFL that they will continue to use images relating to Australian Rules Football in their independent coverage of the sport.

This is a very good outcome from our perspective - ContestedFooty provide valuable independent reporting and commentary on a sport close to the hearts of many Australians, and their ability to do so would be significantly hampered if they were required to seek and agree to licensing terms from the AFL. We are certainly happy that ContestedFooty have been able to examine the AFL’s claims and ensure that they can continue to operate without infringing copyright, trademark, or passing off laws.

However, this case shows the difficulty inherent in the complexity of Australian law, and the potential for abuse by rights holders. We are extremely disappointed that the AFL sought to suppress news and commentary in the way that it did by issuing legal threats against the operators of an independent blog. We believe that this is an example of over-reaching that the system allows, primarily due to a lack of clarity as to what exactly users of trademarks and copyright material may do without a licence. The unfortunate effect of this lack of clarity is that independent publishers are forced with a tough decision - to comply with the demands without further examination, or to seek costly legal advice. Because the cost of legal advice for a blogger is often prohibitive, we are very concerned that rights holders are often able to make overly broad demands. Luckily, in this case, the bloggers were fortunate enough to be able to obtain pro bono advice from an experienced solicitor - but not all such stories end so well.

I would like to reiterate our support for the team at ContestedFooty, and wish them all the best in continuing to provide high quality independent coverage of Australian Rules Football.

The draft treaty (MS Doc; Google cache here) includes several important clauses, including:

• an exception to copyright infringement for non-profit supply of accessible versions of works to which a person with a print disability already has access in a non-accessible form;
• a statutory licence for reasonable for-profit supply;
• an exception to anti-circumvention law to allow blind persons to break technological locks that make the work inaccessible; and
• most importantly, an exception that allows importing and exporting of accessible versions of copyright works, enabling them to be distributed to blind people in other countries.

Please help us ensure that people with a print disability have access to published copyright material in an accessible form by raising awareness and contacting the Attorney-General’s Department.

This is an important proposal before WIPO, and has the support of the World Blind Union as well as many other NGOs. Whilst some of the goals of the treaty may be implemented at a national level, WIPO support means that signatories will be prompted to amend their laws much quicker. WIPO support is also likely to be required in order to introduce the import/export exception, which is likely to significantly reduce the very significant overheads that countries face in digitising books and creating accessible versions of works.

Australia forms part of Group B, which opposes the treaty, and includes the US, Canada, New Zealand, the Vatican and Norway in opposing the treaty. We have not seen an official statement by the Attorney-General’s Department on whether Australia supports the treaty or not. We can hope that Australia is able to lead the way in expressing support and lobbying other countries in Group B to support the proposed treaty. The AGD has reportedly said that it will hold public consultations on the treaty - now is the time to write and ensure that our representatives know that Australians want improved access for blind people and those with other reading disabilities.

Cory Doctorow has asked us to

reblog, tweet, and spread the word, especially to government officials and activists who work on disabled rights. We know that WIPO negotiations can be overwhelmed by citizen activists — that’s how we killed the Broadcast Treaty negotiation a few years back — and with your help, we can make history, and create a world where copyright law protects the public interest.

Accordingly, please take the time to write to the Attorney-General’s Department and express your support for greater access to published material for people with a print disability. We at EFA strongly believe that it is simply not acceptable that blind people are denied access to published material to any greater extent than sighted people. The treaty that is being proposed greatly simplifies the responsibilities of countries worldwide to remove barriers to access for blind people and proposes to introduce a new exception making it easier for accessible copies of books to be distributed to where they are needed.

I, along with my colleagues Paul Harpur and Dilan Thampapillai, have previously written about the difficulty that blind users have accessing copyright material in Australia. Paul Harpur has been diligently following up this work with further research on how Australian universities can help blind students by providing clear text copies of printed material. In the paper we published, we noted the complicated and limited nature of Australia’s statutory licence and limited exceptions in favour of people with print disabilities. We argued for the establishment either of a government funded digital repository or for the creation of an exception in Australian copyright law to allow markets to provide accessible formats of works where publishers refused to do so. EFA reiterated these sentiments in our submission to the Digital Economy Future Directions paper.

More on Twitter: #sccr18.
Thanks to Gwen Hinze and the folks at the EFF for continuing to apply pressure for reading accessibility. See further: Reading Rights Coalition and Knowledge Economy International.

This appears to be another example of Australia’s trademark laws being used to stifle legitimate commentary and critique. There certainly does not appear to be any source of confusion as to whether the bloggers are officially sanctioned by the AFL or the teams in question. The bloggers are not trading off the AFL’s reputation, or representing some false connection with the league. Certainly the trademarks do not appear to be used as trademarks; the marks are plastered on the guernseys of the players - it’s hard to show a picture of an AFL player without also showing the marks.

As for the copyright claims, these seem even weaker. We do have fair dealing for criticism and review and for the reporting of news, defences which the bloggers would seem to fit within without trouble. The bloggers say that their photos are original and that they’re not reusing unlicensed photos.

If the AFL’s demands are respected, this imposes a substantial chilling effect on speech. At its limits, it means that all commentary on AFL must either (a) not refer to specific teams or show pictures of players; or (b) negotiate (and pay for) a licence from the AFL - presumably also opening the possibility that the AFL will dictate the terms or even content of the commentary.

Luckily, sport plays a much bigger role in the Australian psyche than that. It is likely that the claims being made by the AFL are somewhat inflated at best. We hope that the operators of ContestedFooty.com are able to respond to the AFL and continue providing valuable critical commentary.

This cautionary tale, however, shows the importance of reasonable intellectual property laws. Nobody wants a situation where fans are unable to talk about their favourite sports, but our current laws encourage trademark owners to make these sorts of claims. Unfortunately, when made against bloggers and students, contesting these claims often becomes prohibitively expensive. I believe that both copyright and trademark law need to be simplified to provide clear space for this type of commentary, allowing bloggers and others to stand up for their rights.

WOW, they’re uncontrollable: Online games, censorship and the crisis of control

6:00-7:30pm, Wednesday 13 May 2009

Dr. Jeffrey E. Brand, Associate Dean and Head of School, Communication and Media, Faculty of Humanities and Social Sciences, Bond University

Melbourne University, cnr Grattan & Barry Sts, Carlton. No charge, all welcome.
Brochure at: http://ssit.ieeevic.org/upcoming.php

This post examines some of the free speech arguments and technicalities of potential appeals processes. Expect long-winded legal analysis beyond the jump.

The ACMA advises that the page we linked to has been classified by the Classification Board as being R18+ content. A summary of the classification decision is available at the Classification Board’s site, classification Number 56671019. The description of the content we received was that it contained “gratuitous, exploitative and offensive depictions of violence, which have a very high degree of impact.”

In our original post, we explained that we were concerned that the ACMA blacklist included not just child sexual abuse material, but also political speech. We believe that the page we linked to, hosted at AbortionTV.com, was political speech. It is a set of images of aborted foetuses, designed to shock, aimed at furthering the organisation’s messages that women should not terminate pregnancies and that abortion should be criminalised.

Our linking to the AbortionTV page, however, was not to support this message. We used the page as an example of over-blocking of political speech by the current and proposed censorship regimes. We are extremely concerned that Australian websites are currently being required to remove links to what we believe is legitimate political speech, even where that speech is offensive. We are also extremely concerned that, if the Government’s plan for mandatory ISP filtering goes ahead, such websites will be blocked without any transparency or avenue for review.

We believe that linking to the blocked page was essential to communicate our message. We believe that Australia’s current and proposed censorship regimes result in the illegitimate blocking of political speech. To illustrate this point, we need to link to what we believe to be an example of a page that has been illegitimately blocked.

Linking to the actual blocked page is important. We could have described the content of the page, but we believe that this would not have been sufficient to let Australians make up their own mind about whether the current or proposed censorship regimes are appropriate. We responded directly to comments by the Minister and others in the current debate that material on the ACMA blacklist is ‘illegal’ material, and that the proposed filter will not block any political speech. The images on the linked page, being R18+ rated political speech, clearly demonstrate that both of these claims are false. While they may be offensive, they are political in nature and they are certainly not illegal to possess. No amount of textual description would have been as effective at demonstrating this point.

What does this mean?

We believe we may have a colourable claim under the implied freedom of political communication. Clause 121(1) of Schedule 7 of the Broadcasting Services Act 1992 (Cth) (BSA) explicitly provides that the takedown scheme “does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.”

The High Court considered the scope of the implied guarantee of political speech in a series of cases in the 1990s. The test developed in Lange v ABC means that laws that laws that “effectively burden freedom of communication about governmental or political matters, either in its terms, operation or effect” must be “reasonably appropriate and adapted to serve a legitimate end”, the fulfillment of which is compatible with the constitution.

It is apparent that Schedule 7 of the BSA “effectively burden[s] freedom of communication about governmental or political matters”, as demonstrated by this takedown notice. We might be able to assume that Schedule 7 of the BSA generally serves a legitimate purpose. However, whether it is ‘reasonably appropriate and adapted’ to that purpose is not clear. In Levy v Victoria, a restriction on protests against duck hunting was appropriate because it was adapted to avoid physical harm to members of the public in hunting areas. This is not such a case. Any potential harm of somebody finding the publicly available R18+ rated images through a link on our website would seem to be far outweighed by the detrimental effect that the takedown notice has on our ability to engage in informed debate about the legitimate scope of our current and proposed censorship regimes.

All this is complicated by the fact that EFA cannot directly appeal this decision. Because EFA does not host its own websites, our provider is the “links service provider” within the meaning of Schedule 7. Under cl 113(5), an application can be made for a review to the Administrative Appeals Tribunal, but it “may only be made by the links service provider concerned” (cl 113(6)).

We are currently investigating potential means of appealing this decision. As Colin already mentioned, this is certainly a worrying example of the dangers of Australia’s current and proposed censorship regimes.

Edit: Changed ‘OFLC site’ to ‘Classification Board’s site’.

There are many reasons why this should alarm Australian net users. Most significantly, the link was part of a political discussion about the merits of the existing and future Internet censorship policies. The link was offered as a demonstration of the sorts of controversial content that could and would be included in any such proposal. No “offensive” material was included on our site itself. Nevertheless, we were forced to remove the link on pain of severe penalties.

To be clear, EFA published only a link to a page that is hosted overseas and is on ACMA’s prohibited list. Viewing the potentially R-rated page itself is not in any way illegal, and no system is yet in place to enforce the blocking of such web pages. One may well wonder why a link to a legally viewable page should draw the threat of legal sanction while the content itself remains visible. Because the link was on a web page hosted in Australia, the hosting provider - not EFA ourselves, who have more control over the content - falls under Australian legal jurisdiction and could be so served. What this accomplishes is uncertain.

This system, which costs Australian taxpayers millions each year, is clearly unworkable. Because the content is hosted overseas, it remains untouched by ACMA’s directives. Any links or commentary on prohibited content can be protected by the simple expedient of posting it on a web site hosted overseas. No letters from the Australian media regulator, issued months after complaints are filed, will reduce the availability of such material. If a link to a prohibited page is not allowed, what about a link to a link? At what number of hops does a hyperlink become acceptable?

This is a textbook case that demonstrates that there is no sharp dividing line between “political” speech and other content. At the edges of public policy are issues which will inflame passions and lead to images, video and words that are offensive to many people. Trying to stamp these out, especially on the Internet, not only diminishes our democracy but is pointless and paternalistic to boot.

On the Internet, a discussion about some information is often barely distinguishable from the information itself. The current ACMA censorship regime accomplishes little apart from achieving a Howard-era political objective, and makes it clear how far behind the curve political thinking is when it comes to the technical realities of the Internet. We now seem set to move to a new stage where the perceived shortcomings of the current system are to be remedied by legislation making the blocking of overseas content mandatory. It goes without saying that such a block will be easily circumvented by those with the motivation, and material of genuine political interest will find a way to proliferate despite the ban. It is average Australians who will be left wondering what they should and should not be viewing, and not know what controversial material has been deemed unacceptable by the censors.

With fines of up to $11,000 per day threatened against our hosting provider, we have little choice but to comply with ACMA’s directive. However, we are investigating an appeal of the order on the grounds that it stifles a legitimate political discussion on the merits of the Government’s internet censorship policies.

Full text of the LDN here.

The Federal Government’s proposal to block internet sites with a mandatory filter has drawn overwhelming opposition from voices across politics and civil society. So what are the real questions for policy-makers?

These forums explore the ethical, social and political questions raised by government regulation of the internet. With the growing intersection between technology, politics and media, how do existing and proposed classification regimes measure up? Is filtering inevitable? Or are there better ways to regulate the world wide web?

SPEAKERS:
Senator Scott Ludlam, the Australian Greens
Michael Flood, Sociologist
Colin Jacobs, Electronic Frontiers Australia
WHEN:
Monday April 27th, 6.30pm

WHERE:
ACMI Cinemas
Federation Square
Flinders Street, Melbourne

Tickets for this event are $5. RSVP is essential: enquiries(at)newmatilda.com [Please inc: “Melbourne Forum” in the subject line]

But whatever we may think of The Pirate Bay, this case raises another example of a very troubling period for copyright law. Pirate Bay and other public trackers are clearly responding to consumer demand, and tougher sanctions for copyright infringement are unlikely to change that. Over the past ten years, we have seen that these actions have rarely, if ever, been successful in curbing the volume of filesharing. New filesharing technologies developed after Napster, Aimster, Grokster, Kazaa, and the creators of other networks were successfully sued. This trend is likely to continue, because the underlying demand is not being addressed.

The goals of copyright are noble. We all want to ensure that professional creators have the ability to be paid for their work. But the current approach of imposing harsh punishments on users and intermediaries is not helping with that goal.

It is time for all of us to work together in creating a regime that can work. The copyright industry needs to start responding to consumer demand - on-demand, DRM-free downloads that can be used whenever and wherever, that can be shared and even remixed, at a reasonable price. Maybe then the industry will realise that fans want to be able to support creators.

Treating fans like criminals has not stemmed the tide of filesharing in the past, and is unlikely to do so in the future. Some copyright owners are starting to realise that they can give consumers what they want and still make money - like Channel Nine, who have found that iTunes podcasts of Underbelly are very profitable, for example. Other creators are beginning to cut out the intermediary in frustration of the old business models and deal directly with the fans - as Radiohead and Nine Inch Nails have famously done. Still more are finding that the popularity boost from legitimate and encouraged filesharing fare outweighs any potential loss in sales - the model that Creative Commons has helped to support. There are plenty of ways that artists can be compensated for their work, and plenty of ways that society can encourage creativity without prosecuting individuals or intermediaries for copyright infringement. These are the discussions that we need to be having to ensure that our digital economy is sustainable.

The alternative is that we keep going down this path, keep trying to stuff the genie back into the bottle, and we keep giving the copyright industry more and more powerful sanctions with which to punish copyright infringement. The next step on this road are ‘graduated response’ schemes, which would require ISPs to monitor the behaviour of their subscribers and disconnect those households who are alleged to have infringed copyright. Then there are statutory damages, which would absolve copyright owners of the responsibility to show actual harm to their bottom line in copyright trials - which, in the US, has resulted in hyper-inflated awards, like the award of USD$220,000 for downloading 24 songs. These are the sorts of measures that are up for discussion in the Anti-Counterfeiting Trade Agreement (ACTA), a secret new deal that could introduce new ‘enforcement measures’ into Australian law. We at EFA don’t think that this is the best way forward - either for users or creators of expressive material.

Colin has an interesting wrap-up of Senator Conroy’s long-awaited engagement with the substantive issues on the New Matilda blog, PollieGraph:

The most significant revelation was that the list will be focused “almost” entirely on RC material. The represents a significant backing away from the ACMA blacklist, which the Minister took great pains to remind everyone was a nine-year-old Liberal Party policy and not an invention of his government. Despite assertions to the contrary, previous indications have been that the ACMA blacklist would form the core of the new mandatory filtering regime, so this represents something of a policy shift.

Any narrowing of the list’s scope is to be welcomed, but unfortunately Conroy refused to be drawn out precisely what would be blacklisted - a few qualifiers were left in to allow future wiggle room. There were many references to bestiality or incest web sites, which while they can conjure up disturbing images in the listener’s mind, especially when juxtaposed with kids. However, the problems with the filter policy occur around the edges where the content is more controversial, and here there was less detail forthcoming.

For more information, please see Colin’s full piece on the New Matilda site.

New Matilda also now have audio available from a forum that I presented at last week, along with Peter Black, Senator Scott Ludlam, and Irene Graham. Many thanks to New Matilda for organising these discussion forums. We are looking forward to similar forums in Sydney, Melbourne, and Adelaide in the near future.