The Australian Government today announced it is going ahead with an ineffective “strategy” to “tackle” online copyright infringement, which puts a gun to the head of ISPs by requiring undue compromise with the copyright industry or face legislative regulation[1]. Despite being demonstrably futile, the Government will be pursuing both a notification scheme and court-ordered website blockades. The Pirate Party opposed both as neither will reduce infringement in Australia and do not address the more pressing issues of accessibility and affordability, instead targeting normal human behaviour[2].

It appears copyright holders will be able to request that an Internet service provider (ISP) sends an educational notice to an alleged infringer, with no actual penalty attached. Copyright holders will also be able to seek an injunction that requires ISPs to block access to websites that allegedly infringe copyright or facilitate infringement. Groups including “wifi providers” and “libraries” are also unreasonably expected to act as “copyright cops” according to an FAQ on the Minister for Communication’s website[3].

“This proposal is effectively the beginning of an Australian version of the failed US Stop Online Piracy Act. Notification schemes, graduated response schemes and website blocking do not work. They are costly, ineffective and disproportioned, as evidenced by academia and decisions of foreign courts. Fighting the Internet itself as opposed to solving the lack of convenient and affordable access does not work, nor does propping up business models that rely upon the control of content consumption in the digital environment,” commented Brendan Molloy, President of the Pirate Party.

These points have been refuted strongly by the Pirate Party and others in their submissions on the Government’s Online Copyright Infringement discussion paper. The efficacy of blocking websites was examined in a Dutch Court of Appeals case earlier this year, where the Court found there was insufficient evidence that blocking the Pirate Bay was effective at reducing copyright infringement and ordered that the blockade could be lifted. The Pirate Party arranged a translation of the judgment, which is available from the Pirate Party’s website[4].

“While it is claimed this benefits consumers as well as copyright holders, the Government has not lifted a finger to address recommendations that would genuinely resolve the access and affordability issues faced by Australians. If the Government was serious about addressing copyright infringement, it would focus on the reality that geographically segmented markets for digital content are unacceptable, impractical and impossible in 2014, that copy protection does little except frustrate paying consumers, and that consumers demand flexibility in the way they can consume content.

“The Government is creating a situation in which everyone is expected to work for the benefit of copyright holders. It is clear that the Government anticipates that everyone who provides access to the Internet, including libraries, schools and cafes that provide wifi hotspots, will be policing the connection on behalf of copyright holders. Regardless of the burden this would impose, everyone will be working to prop up and protect industries that have stubbornly refused to adapt to cultural and technological changes that have been occurring for at least the last 25 years.”

The Pirate Party suspects that these plans tie-in with the ill-defined purpose behind data retention legislation currently before Parliament. Several definitions of “metadata” have included data that could be used for the purposes of civil litigation, including actions for alleged copyright infringement.

Meanwhile it appears the Minister for Communications, Malcolm Turnbull, has dismissed contentions that blocking websites is Internet filtering[5]. The Pirate Party disagrees with the Minister’s misunderstanding of the core definition of “filter”, holding that blocking access to websites is censorship.

“Website blocking is censorship, plain and simple. It has always been suspected that file-sharing would be captured by filtering at some stage. Now the Coalition has dropped all pretence and introduced a form of filtering purely to protect old media from the Internet. By ignoring the IT Pricing Inquiry and numerous submissions to different reviews that Australians are regularly paying more and waiting longer for content, the Coalition is looking to enact a legislative dinosaur that will be easily bypassed by savvy Internet users in seconds,” commented Simon Frew, Deputy President of the Pirate Party.

“The Liberal Party recognised just before the last Federal Election that Internet censorship is electoral suicide and abandoned its policy on the eve of the election. Voters aren’t stupid and will see this renewed censorship policy for what it is.”

Mr Molloy added: “People have decided that they want to engage with their culture in new ways that conflict with the Copyright Act, and the Government’s press release itself notes that it has sided with copyright maximalists over the interests of their citizens and voters. Using such legislation to fight the amazing technological advances that have brought the entire world closer together to interact in ways previously unimaginable is futile beyond measure.

“Copyright-based industries must act to meet consumer demand, not cynically attempt to have legislation akin to the failed American SOPA implemented in Australia to penalise consumers for their own antiquated business practices.”

The Pirate Party calls on ISPs to hold firm against any proposals that would turn them into “copyright cops” and would interfere with their customers at the behest of the copyright industries.

[1] http://www.malcolmturnbull.com.au/issues/new-measures-to-tackle-online-copyright-infringement
[2] http://pirateparty.org.au/media/submissions/PPAU_2014_AGD_Online_Copyright_Infringement_DP.pdf
[3] http://www.malcolmturnbull.com.au/issues/new-measures-to-tackle-online-copyright-infringement
[4] http://pirateparty.org.au/2014/12/09/website-blocking-ineffective-and-disproportionate-says-translated-dutch-court-judgment/
[5] https://twitter.com/joshgnosis/status/542519751214260227

Proposals to allow copyright holders to seek injunctions that require Internet service providers (ISPs) to block subscribers’ access to allegedly infringing websites will allegedly be presented to the Federal Cabinet today[1]. Coincidentally, the Pirate Party is pleased to publish its recently-commissioned translation of a Dutch Court of Appeals case (ECLI:NL:GHDHA:2014:88) that casts significant doubt on the efficacy of blocking websites[2].

The Pirate Party arranged and crowdfunded a certified translation of the case involving two ISPs, Ziggo and XS4All, and Dutch anti-piracy association BREIN[3]. The translation was carried out by Sydney translation service Linguistico and the Pirate Party has published the translation under the Creative Commons Zero licence, allowing unrestricted use.

“Today the Pirate Party has demonstrated that it is willing to put its money where its mouth is and contribute to the commons. This translation is a significant piece of evidence that can be used to campaign against Internet censorship,” said Brendan Molloy, President of the Pirate Party.

“What this judgment makes exceedingly clear is that website blocking is ineffective and disproportionate for the many reasons we outlined in our submission[4] on the Government’s Online Copyright Infringement discussion paper.”

Many submissions to the inquiry, including the Pirate Party’s, argued that the discussion paper attempted to solve a problem that does not exist, while acknowledging yet overlooking the major issue of access to content.

“What is known to solve the ‘piracy problem’ is providing consumers with convenient, timely and affordable access to the content they wish to acquire, and these alleged proposals will regress Australian copyright, not progress it,” commented Mr Molloy. “Another look at the recommendations of the ALRC ‘Copyright and the digital economy’ review certainly wouldn’t go astray.”

The Pirate Party thanks all of the supporters who contributed to the crowdfunding campaign that made this important translation possible.

[1] http://www.smh.com.au/digital-life/digital-life-news/no-harsh-penalties-for-illicit-downloaders-under-copyright-reform-20141208-122rmj.html
[2] http://pirateparty.org.au/media/documents/ECLI_NL_GHDHA_2014_88_ENG_Ziggo_v_BREIN.pdf
[3] http://www.pozible.com/project/185899
[4] http://pirateparty.org.au/media/submissions/PPAU_2014_AGD_Online_Copyright_Infringement_DP.pdf

In response to the Senate’s passing of the National Security Legislation Amendment Bill (No. 1) 2014 last Thursday, the Pirate Party has updated its policies to specifically oppose the Bill and support its repeal in the likely case where the lower house also approves it in the coming days[1].

The Bill makes major amendments to the ASIO Act, giving ASIO the ability to access, modify, copy and delete information on computers. ASIO may also be able to apply for a computer access warrant broad enough to cover every device on the Internet at once. Other amendments will introduce tough sentences for journalists and whistleblowers who report or disclose sensitive information, even if it is in the public interest.

The legislation also grants blanket immunity from prosecution for many illegal acts undertaken as necessary under a “special intelligence operation”, effectively granting ASIO unprecedented powers without the necessary checks and balances required by a legitimate liberal democracy.

Party President Brendan Molloy commented: “Labor has farcically waved through some of the most onerous legislation of the last decade with little more than a rubber stamp, as the Liberal Party whips up yet another fear-based storm of ‘national unity’ with insufficient evidential basis. This legislation criminalises journalism and whistleblowing, regardless of the public interest, while effectively granting ASIO agents the power to do anything they please.

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The Pirate Party made a lengthy submission to the Attorney-General’s Department last Friday, responding to the Department’s “Online Copyright Infringement” discussion paper[1]. The submission highlighted a number of flaws with the discussion paper, such as reliance upon studies commissioned by copyright lobbyists[2], and also drew attention to the lack of government action on recommendations that could reduce online copyright infringement by improving prices and availability of digital content in Australia[3].

It also highlighted the lack of reliable and independent empirical evidence for the discussion paper’s proposals, and criticised attempts by copyright lobbyists to compare copyright infringement with terrorism or the distribution of child sexual abuse materials[4]. The discussion paper proposes creating obligations for Internet service providers to cooperate with copyright holders, which may mean implementing a graduated response or “three strikes” scheme where Internet users are sent letters if accused of infringing copyright. It also proposes allowing copyright holders to seek injunctions requiring ISPs to block access to websites.

Mozart Olbrycht-Palmer, principal author of the Pirate Party’s submission, said: “The Government decided to focus its attention on changing consumer behaviour and our submission explains at great length why that approach just won’t work. If online copyright infringement is truly out of control, copyright holders only have themselves to blame. The reality is that increasing access and affordability of content will reduce online copyright infringement: just look at Steam, Netflix and Spotify. The discussion paper acknowledges this but its proposals are focused in entirely the wrong area.

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Responding to the Attorney-General’s refusal to publish more than 5,500 submissions on the Government’s proposed amendments to the Racial Discrimination Act, the Pirate Party has lodged a freedom of information for the release of those documents[1]. The refusal to release these documents has been referred to as “ironic” given the amendments were designed to improve freedom of speech in Australia[2]. In May this year the Attorney-General announced the Government was reconsidering the amendments[3].

Brendan Molloy, Councillor of the Pirate Party commented: “This is an unusual and overwhelming number of submissions. In our experience legislative inquiries and reviews are unlikely to reach 100 submissions. The fact that over 5,000 were received demonstrates an obviously enormous public interest in the legislation, and opposition must have been extreme for the Government to be so tight-lipped on these submissions. There is no decent reason why these submissions should not be made available to the public.”

“This Government has shown a worrying tendency against transparency in the ten months it has been elected. There has been a pattern of refusal to operate transparently, from refusing to release departmental briefs even after freedom of information requests were made[4] to the expansive and secretive scope of ‘Operation Sovereign Borders'[5]. The Government has refused to allow the Human Rights Commissioner to visit the detention centres on Nauru and Manus Island for the preposterous and bureaucratic reason that the Commission’s jurisdiction does not extend past Australia’s borders[6]. In addition to all of this, the appalling track record of the current and former governments has overburdened the Office of the Australian Information Commissioner. It takes several months for the OAIC to review rejected freedom of information requests, and instead of providing more resources, the Abbott Government is axing it![7]”

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