New Copyright Proposal to Increase Internet Censorship in Australia

With Internet censorship becoming a failed policy in Australia, the government is proposing even more Internet censorship.

It’s been a long-standing concept. Mass litigation of file-sharers, mass Internet censorship, and three strikes laws have been widely known as failures. With some countries implementing one or more of the above policies, failure has become the ultimate outcome.

In 2015, the Australian government, at the behest of major corporate copyright holders, moved forward with mass Internet censorship. At the time, there was massive public outcry from all walks of life. Experts warned that it would do nothing to stop alleged copyright infringement nor would it bring consumers back to the music store to buy records. Despite an overwhelming amount of evidence and expert opinion saying that the government shouldn’t move ahead with this, the government decided to listen to corporate lobbyists and make censorship the law of the land.

One of the many warnings that experts had was that censorship creep could take effect. If one thing got censored, then corporate lobbyists would be back to demand even more censorship. Those words became prophetic because, sure enough, the lobbyists came back to demand the censorship of fan-sub sites as well.

As for whether or not consumers went back to the music store to buy legal content? As experts accurately predicted, that never came to be. Consumer spending of legal content fell after Australia began their massive Internet censorship program.

With mass Internet censorship being a massive failure, you’d think the government would re-think this strategy and pull back. Unfortunately, that is not the case. After intense lobbying from corporate rightsholders, the Australian government is now doubling down on mass Internet censorship. According to the Electronic Frontier Foundation (EFF), Australia is proposing a new law that would bring in even more Internet censorship. All this in spite of the fact that censorship has already been proven to be a failed policy.

The new laws would change the language of copyright laws so that censorship orders can be placed on websites who has a “primary effect” of copyright infringement. The language is a departure from the old language which was “primary purpose”. That change in language has huge legal implications. From the EFF:

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.

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.

In short, even if the purpose of the site is intended to be a platform for creators, if any one piece of content is uploaded that is infringing, then that site could fall into the category of “primary effect”. While YouTube is one example, pretty much any website could fall into that category.

Does the website support user generated comments? Does it allow messaging between people? Can someone post audio? Can someone post anything at all? If the answer is “yes” to any one of these questions, then that website can easily fall into the category of “primary effect” and be subject to Australia’s Internet censorship blacklists.

What’s worse is that there appears to be no evidence that this law would make anything any better. Conversely, the Australian experience is that Internet censorship has only made things worse for everyone involved. Unfortunately, the government seems to think if a massive amount of Internet censorship doesn’t work, then even more will make things all better.

From an International standpoint, these moves by Australia are particularly bizarre. Canada, for instance, implemented a notice-and-notice system. Rightsholders can complain, but they can’t extort money anymore. The loophole that allowed rightsholders to try and blackmail Canadians out of money is currently in the process of being closed by the Canadian government. Canada also has no Internet censorship policy in place surrounding infringement. For corporate rightsholders, that apparently sounds like a recipe for disaster.

In fact, the results pretty much speak for themselves. There is currently a constant stream of stories talking about record breaking profits, revenue continuing to soar, best year ever, companies raising dividends because things have never been better, and so on and so forth. In fact, things have gotten so good, Music Canada (Canada’s Recording Industry Association of America), wound up admitting that piracy is drifting away in Canada. The bottom line is that Canada looked at file-sharing, put a stop to file-sharing lawsuits and refused to implement three strikes laws as well as Internet censorship. This approach has become an overwhelming success and the issue around non-commercial infringement has by and large been solved.

As a result of this, you have a tail of two countries. One country begins massively censoring the Internet in hopes of driving customers to the record stores. In response, consumer spending drops in entertainment. Meanwhile, Canada decides to implement little more than a notice-and-notice system and things have never been better for the country on this front. So, seeing the Australian government somehow come to the conclusion that more Internet censorship is needed seems to fly in the face of the overwhelming evidence that this is the wrong approach.

Unfortunately, it seems that Australia is only going to be in a world of more hurt because of the policies. Judging by all the evidence, the pain will be felt all around because of these policies. Things will probably only get worse from here depending on how much further the government takes things.

Drew Wilson on Twitter: @icecube85 and Google+.


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