This article was originally published on June 29, 2015.
What happens when the government decides to crack down on Internet piracy? In Australia, the result is The Copyright Amendment (Online Infringement) Bill 2015, which looks to give digital rights holders more control over their content, no matter where it may be hosted. On paper the idea has merit, but at least some intellectual property experts are crying foul—and warning that the new law may sink more than swim.
Flying the Black Flag
Digital piracy is a serious problem worldwide. According to the Global Post, for example, when HBO mega-hit Game of Thrones debuted its fourth season last April, the first new episode was illegally downloaded more than one million times in a single day. And as noted by the New York Times, countries like Sweden have become a hotbed for piracy—no surprise, since it’s the birthplace of notorious file-sharing site The Pirate Bay, and more than 280 million films and television shows were illegally downloaded in Sweden in 2014 alone.
Of course, the country’s pirate providers don’t keep all this content to themselves, and are happy to sell it or give it away to interested parties worldwide. It’s this vast storehouse of copyright-violating content that worries Australian lawmakers, and prompted a 37-13 vote in support of the new bill. In fact, the law specifically targets overseas Internet websites, termed “online locations”, that distribute pirated content. Simon Bush of the Australian Home Entertainment Distributors Association calls the new legislation a “watershed moment”, and describes it as a “really positive sign for the creative content industry.” Glowing praise… but what’s the real impact?
Here’s how it’s supposed to work: If digital rights owners discover that their content is being hosted on a site outside of Australia, they can apply to a Federal Court judge and request the site be completely blocked for all Australian users. The act of blocking the site falls to Internet Service Providers (ISPs) like Telstra and Optus.
But there’s a problem. Several, actually. First up are definitions. The law says that any site with the “primary purpose of facilitating copyright infringement” is fair game for a court challenge. But the bill doesn’t lay out the specifics of these terms, according to Dr. Matthew Rimmer, an associate professor at the ANU College of Law, who calls the passing of this bill “a very dark day for the Internet in Australia.” Without solid definitions, it’s left up to Federal Court judges to decide what constitutes the “primary purpose” of a site. What if 30 percent of all files hosted are pirated? Is that a primary purpose, or merely happenstance? And what identifies a website as “facilitating” copyright infringement? Is hosting enough? Or do they need to advertise and charge a fee for content?
There’s also the issue of how exactly sites will be blocked. It’s likely that ISPs will get to choose their preferred method, which means two things: simple to execute and likely to come with a new cost for consumers. There’s also worry about a repeat of what happened with government agency ASCI, which compelled ISPs to block the IP address of a server rather than an offending website’s URL, resulting in blocked access to more than 250,000 non-criminal sites.
So how are content-hungry Australians planning to handle the new law? According to The World Today, one likely avenue is an uptick in the use of virtual private networks (VPNs), which allow users to anonymously access websites and sidestep these new regulations. And while there’s some concern that the bill might also seek to block overseas VPN companies, SBS reports that an explanatory memorandum attached to the new legislation makes it clear that VPNs won’t be targeted, although it does not offer any specific protections.
Australia is hoping to stem the tide of pirated content by blocking access to website ports-of-call that are of less than stellar repute. But the plan may backfire as more users opt for VPNs and similar solutions to secure their activities online and let them access what they want, when they want it.