Australia's SOPA Gets The Green Light

from the site-blocking-down-under dept

The Copyright Amendment (Online Infringement) Bill 2015 is the latest in a long line of misguided attempts by the government to monitor, control and censor the Internet.



The Bill will allocate a significant new censorship power to the Court that will be used by copyright owners to block access to online content. However, there is a substantial weight of evidence showing that it will be relatively easy to evade the Bill's provisions, that it does not contain appropriate safeguards, and that it may result in legitimate online sources being blocked.



Most importantly, there is also a significant weight of evidence showing that the Bill will not meet its aims, as it does not address the underlying cause of online copyright infringement: The continual refusal of offshore rights holders to make their content available in a timely, convenient and affordable manner to Australians.

The committee acknowledges the evidence given by the Department of Communications regarding VPNs but notes that the Bill does not explicitly contemplate the introduction of injunctions against VPNs. The committee also notes that VPNs are unlikely to meet the 'primary purpose test' in proposed paragraphs 115A(1)(a)-(c). The committee would however be reassured if the government were to clarify the status of VPNs in the Explanatory Memorandum to the Bill.

The committee takes the view that by providing the Court with a high level of discretion the Bill would allow the Court to both target specific issues that arise in individual cases and develop a general body of jurisprudence to provide more legal certainty into the future. As the Bill would allow the Court to tailor an order to the circumstances of a particular case, the committee expects that the Bill would encourage the Court to draft orders in such a way so as to effectively deal with the online copyright infringement but at the same time limit any unintended consequences such as over-blocking or accidental blocking.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Last December, we warned that Australia was about to get its own version of SOPA. The key aspects of the proposed law were exactly the parts of SOPA that so concerned millions of people in America: the ability of someone to make a copyright complaint that would force an ISP or other third parties towith little to no due process. In March, just such a bill was introduced , pushed by Attorney General George Brandis, who refused to listen to consumer advocates and their concerns (though he met plenty of times with Hollywood reps). Also, more importantly, supporters of the bill did not conduct any sort of cost/benefit analysis to see if it was worthwhile.And now, that bill has been given the green light to move forward after the Parliamentary committee reviewing the bill voted to move forward with it -- despite the lack of the cost/benefit analysis. From their recommendations, it appears that almost everyone on the committee has almost no clue about how this would work, the impact on free expression or the collateral damage created from blocking. Instead, it just takes for granted that "copyright infringement poses a significant threat to the viability and success of Australia's creative industries" and thusEven if that "something" won't solve the problem and will actually create many more problems.In addressing the lacking cost/benefit analysis, the committee more or less shrugs its shoulders and says, well, how about we add a plan to review how well this is working two years down the road.The only dissenting view was put forth by Senator Scott Ludlam, who spoke out clearly about the problems of Australia implementing its own SOPA:As we had mentioned, there had been some concern earlier this year that the vague terms in the bill -- specifically about "facilitating" infringement -- could lead to VPNs being banned . When asked about that, defenders of the bill kept giving non-committal answers about that not being the target -- and the committee report seems to accept that as fine, so long as there's some sort of notation with the bill saying that it's not intended to go after VPNs:What's somewhat amazing to me is that a couple years ago, when it looked like Australia might actually introduce fair use into its copyright law, the copyright industry flipped out , arguing, in part, that because there wasn't a history of case law to rely on, it would lead to craziness while the courts sorted things out.Yet, amazingly, when it comes to this sort of site blocking, it appears the copyright maximalists take the exact opposite stance: arguing that it's fine to let the courts flat out censor websites, because the courts will have lots of "discretion" to sort things out:Yeah, because courts never get tripped up by this kind of stuff...And of course, Australia should know damn well how poorly this kind of stuff works in practice, because after the Australian Securities and Investments Commission tried to block about 1,000 websites a couple years ago, it accidentally knocked a quarter of a million sites offline because no one understood that multiple sites could share the same IP address. And yet, these are the same people voting to move forward with this plan to let the government simply declare websites "bad" and cut them off.Again, as we noted back in the SOPA days, nearlynew technology has been declared a major "facilitator" of "piracy" by the copyright industries before they figured out how to use them. This includes: radio, recorded music, television, cable television, the photocopier, the VCR, digital music, the DVR, the MP3 player, online video and online storage lockers. All of them. Under bills like SOPA or this Australian version of SOPA, the industry is allowed to effectively kill such innovations early, making it more difficult for the content industries to adapt and embrace these new services which time and time again have been shown to make the industry more money in the long run.It is the ultimate ignorant and lazy response of Australian politicians to believe that they need to block new innovations because the copyright industry refuses to innovate or figure out ways to better serve the public. And, even worse, they seem to feel the only way to do so is in a way that censors large parts of the internet, puts tremendous costs on ISPs (to be passed on to consumers), and which will only serve to drive infringement further underground, rather than magically convincing people to give extra money to Hollywood.

Filed Under: australia, censorship, copyright, site blocking, sopa, vpns