Due process?

Film studios to become ‘police, judge, executioner’: Australia’s third largest ISP is being sued by several film studios and the Seven Network for enabling copyright infringement by failing to prevent its users from downloading pirated movies and TV shows.

iiNet, and the industry body, the Internet Industry Association, say ISPs should not be required to take action against any customers until they have been found guilty of an offence by the courts.

ISPs argue that, like Australia Post with letters, they are just providing a service and should not be forced to become copyright police.

Conversely, the TV and movie industry want ISPs to disconnect people it has identified as repeat infringers. There would be no involvement from police or the courts and the industry would simply provide the IP addresses of users they believe to be illegal downloaders.

“To shift the burden of proof and require that ISPs terminate access to users upon mere allegations of infringement would be incredibly harmful to individual internet users in Australia,” the online users lobby group Electronic Frontiers Australia said.

“Every citizen has a right of due process under the law and, when faced with having their internet service terminated, every citizen has the right to ask that the case against them be proven first.”


This is the first time that an ISP has been targeted in this way for simply providing internet connections that have been used, without their encouragement, to download material that infringes copyright. Previous successful legal actions, resulting in penalties of large fines, have been taken against sites and online services that directly encourage copyright infringement.

I’m very curious as to what sort of avenue of appeal there might be to have one’s name taken off the film/TV industry’s list of infringers should one be able to prove that they have got it wrong. At the moment it looks like they just want the ISPs and everybody else to take their word for it.

The fact that there wouldn’t be such a market for copyright-infringing downloads if the film/TV industry reformed its business model to acknowledge digital realities instead of creating artificial scarcity with unnecessary delays between releasing films onto DVD and broadcasting television shows in different countries is also worth examining. There is no need to delay when film canisters are no longer required to be physically shipped to other markets. Technology has changed, especially the technology available to consumers, and hanging on to traditional time periods between releases in various media and various markets just because it is traditional is guaranteed to cause consumer resentment.

I don’t personally do infringing downloads, although I confess that I do catch the occasional episode of favourite shows that others upload to YouTube when they first air overseas, so that I can discuss the latest episodes with other fans worldwide. As I always subsequently watch the same episode again when it airs here months later (in superior resolution), I feel absolutely zero guilt about this. The TV industry gets their expected eyeballs on their product from me.

There are lots of people out there like me, who are fans of shows with worldwide fandom communities who like to discuss them in online forums. Those of us in countries which traditionally delay TV broadcasts of popular US or British shows for months afterwards don’t want to miss out on these discussions when they are at their most current i.e. immediately after the show airs in its primary market. Why doesn’t the industry recognise that this demographic exists and offer a moderate-quality legal download, one that includes those commercials, as a separate income stream from the on-sale of their product to broadcasters in other markets? If they keep it only medium-resolution, so that the fans can get the narrative but not the best image quality, they’ll still get their sales of high-resolution DVDs to the diehard fans. Just ask Monty Python.

Crossposted at Larvatus Prodeo



Categories: ethics & philosophy, law & order, media, technology

Tags: , ,

15 replies

  1. Why doesn’t the industry recognise that this demographic exists and offer a moderate-quality legal download, one that includes those commercials, as a separate income stream from the on-sale of their product to broadcasters in other markets?

    I don’t think the advertisers would pay anything extra for commercials on downloadable content targetted at markets outside the country, so there wouldn’t be any compensating revenue.
    FWIW you can get many US shows these days off itunes – just create yourself a US account, make up a fake address and purchase credit with gift cards either through friends overseas or via ebay where you can get gift cards at less than face value. Thanks to the writers strike we’re not very far behind the US these days 🙂

  2. @ Chris:

    I don’t think the advertisers would pay anything extra for commercials on downloadable content targetted at markets outside the country, so there wouldn’t be any compensating revenue.

    Nope. They would need download mirror sites for each region, and the product downloaded could carry regionally targeted advertising. Or they could charge a reasonable, small, fee per download.
    I suspect the procedure you outline for accessing itunes using a fake US account is technically regarded as pirating, BTW.

  3. Yeah – I’ve never downloaded a TV show (is that ‘ripping’ or something like that?); it just seems wrong to me. I would happily pay to get the show legally, and indeed, I often do, via DVDs. But that happens months and months and months later, which is, well, bloody annoying.
    It also means that we very rarely, if ever, watch TV. We tend to borrow DVDs instead. So we had a minor Deadwood watching frenzy a month or so – getting all three series out in order from the local DVD store, for the grand sum of $3 per series. I can’t see how anyone made any money from that. If however, we could get shows hot of the press, why then, we might just get back to watching commercial TV.
    Deborah’s last blog post..Cooking with my grandmother: traditional Christmas cake

  4. I’ve never downloaded a TV show (is that ‘ripping’ or something like that?); it just seems wrong to me.

    I don’t do ripping/torrenting for TV shows purely because of laziness and bandwidth-hogging issues on our home network. I don’t see it as wrong when it’s a show that I’ll watch again when it is broadcast anyway, and have gratefully accepted the offers by others of copies of their own downloads. I always watch it when it comes on TV as well – the pirated versions are generally much lower quality – enough to follow the story-line, not enough to appreciate all the cool visual effects of your average sci-fi show, for example. I suspect that’s why most shows don’t go after people who upload recordings of TV episodes to YouTube – they’re well dodgy, and they just give people even more of a taste for the high-res product when it becomes legally available.
    I’m less ethically blase about pirating movies on cinema release. That strikes me as more obviously theft.

  5. I suspect the procedure you outline for accessing itunes using a fake US account is technically regarded as pirating, BTW.

    I’d be interested to know for sure. In my case its just a very old address rather than a fake one. But either way I’d love to see the media companies attempt to sue someone even after they paid for the product 🙂
    I think it would have to be pay per download rather than advertising – its just too easy for end users to skip adverts (or even have the skipping done automatically). Unless they go for more product placement or annoying tickers around the screen.
    Anyway I’d agree that if the studios made it easier to legally pay for downloads (there’s no reason they can’t make it DVD quality) and make the process itself easy (eg something like itunes) a reasonable amount of the piracy would go anyway.

  6. I’m less ethically blase about pirating movies on cinema release. That strikes me as more obviously theft.

    violation of copyright.
    No need to help the media companies with their misleading advertising campaigns 🙂

  7. I always watch it when it comes on TV as well – the pirated versions are generally much lower quality – enough to follow the story-line, not enough to appreciate all the cool visual effects of your average sci-fi show, for example.
    I think that someonenotme who does this sort of thing often, so I’m told, might suggest you find better friends to give you downloaded Tv shows because I have overheard strangers talking about it on the bus who do it all the time and THEY say you can download things in HD which are actually better than you might get on your average network TV. 500MB – 1 GB for a 47 minute show is a lot of pixely things.
    So I’m told. I’m also told that when a person already pays $100 plus a month for a “platinum” cable TV subscription in part to get the Colbert show and then Colbert does a much hyped Christmas special which the cable TV provider IS NOT SHOWING, folks get cross and we are but mortal sinners after all. We have our limits. There’s no telling where our black hearts may be lead.
    (Of course on YouTube is different, ‘cos of the size issues)
    I believe this website has relevant posts:
    http://cspcentral.com.au/wordpress/

  8. The fact that there wouldn’t be such a market for copyright-infringing downloads if the film/TV industry reformed its business model to acknowledge digital realities instead of creating artificial scarcity with unnecessary delays between releasing films onto DVD and broadcasting television shows in different countries is also worth examining.
    Exactly. I use iinet myself, and I had to call them last week regarding some problems with my connection– while my computer was endlessly being restarted, I discussed this issue with the technical support guy, and we both agreed that in a decade this won’t even be an issue, because shows will be broadcast internationally and legally through the internet anyway. And honestly, it’s only going to raise the amount of revenue they receive in the end anyway– for instance, a lot of shows aren’t shown on networks available to most people here– for instance, those shown on Ten HD, and I imagine that what is lost in advertising revenue would easily be made up for by the fact that many fans of the show will spend money on books, DVDs, magazines, etc, which they would not have spent had they never been able to watch the show in the first place.

  9. I wonder why that ISP is being targeted in particular? And what the big two make of it?
    I think you’re absolutely right that the television and film industries have yet to adapt to the huge changes in technology. I don’t think motivation to download is only about pirating a product for free… there are a variety of reasons someone might turn to downloading. One irritating problem is that a lot of free to air shows for Australian audiences from the US and the like are truncated, with bits and pieces missing to fill different timeslots. Another is a problem I faced the other day- I own every Ab Fab dvd and want to watch it on my ipod when I’m travelling. Do I go through the long and tricky process of ripping it myself, or download a conveniently sized ipod version? Oh, the trials of modern life! (Though my petty dilemma raises interesting issues about incompatible technologies and ownership…)
    Yet another is participating in global fandom audiences- there’s nothing more irritating than being left out as the fandom discusses the latest episode (Dr Who, Torchwood, Sarah Jane adventures… products my family and I will download, watch once they air in Australia and buy all the dvd box sets for and various merchandise aside. The money is made despite our initial infringement, and the potential for more revenue is there as we engage in fandom and keep the series alive beyond its airing date.)
    Beppie pointed out the profits that can be made from engaging the fandom side of things- I believe (and wish there was a way of demonstrating it) that an intelligent approach to television would be to make a product as easy to access as possible and capitalise on fandom investment.

  10. Not to mention Anime fans.
    I personally get resentful that when I do buy the translated dvds legally I’m paying a lot of money for the American dubbing which I hate with a passion and never listen too anyway.
    Besides that a lot of anime may not get over here and the only way for people to find anime they might like is to download fan-subs (japanese audio with fan translated subtitles). I think I speak for most fans when I say that I’ll get into anime series from downloading them, knowing they are something I want to watch and will eventually buy legitimately when/if they are imported. Not to mention all the merchandise that comes from anime.
    At the moment I’m trying to find korean horror films (original ones that have been remade in hollywood) as once again they are extremely difficult if not impossible to find in Australia. One usually has to buy a DVD from a different region and can only play it on a region free dvd player

  11. As someone who, like Anna, has overheard many a person talking about the joys of piratical behaviour, I’ve heard that some take this as a stand against current models of copyright, which, like styles of broadcasting, have not been reshaped to deal with the world of the digital, in which scarcity doesn’t play a part. (Have you all seen those ads before DVD movies (which I tend to see at the cinema coz I likes cinemas!) that say ‘You wouldn’t steal a car, you wouldn’t steal a handbag, don’t steal movies’? As an ex of mine pointed out: ‘I might steal a car if I could take an exact replica of it, and leave the original sitting there…’ Oh, and those other ones who tell you that pirating movies supports terrorism? Hehehe. Hilarity) Broadcasters are unlikely to do anything until they really have to, and current models of copyright are in dire need of rethinking, not least to protect the producers of whatever material it is, rather than just the studios. This is particularly important for those who purchase DVDs etc, which I do, at least sometimes: I’d like to think that buying that extra copy of Firefly would help to keep Joss Whedon makin’ shit, but in the end, it’s really just supporting those who screwed him over (FOX)). The digitising of information generally means intellectual property law needs to be more sophisticated.
    Not only this, but Australian TV just doesn’t broadcast a lot of what these people watch, or if they do, it’s much later, which like everyone’s said above, kinda breaks fandom; and in general, they slice and dice it, jumble up seasons, reschedule without warning, and so on. I also have to say that these people tell me that watching TV without ads in has resensitised them to the incredible and offensive bullshit of current commercials on Australian broadcast TV at the mo, so that they tend to download even those shows which are ‘streamed direct’ from the US (ah, yes, streaming that takes four days. Very like streaming, very like indeed.) Also, some people would like to know what the difference is between taping a show and fast-fowarding through the ads, and dling a copy…
    Not sure if everyone knows this, but Australian budget ISP exetel has already given into these requests to shut down net access to certain people suspected of pirating (in advance of actual proof). Thank all the stars in the heavens most ISPs have pretty well considered approaches to both this and censorship (probably a result of having a decent grasp of creative commons, esp. its success in relation to software production). And Lil, I thought iinet was the largest ‘pure’ ISP in Australia? Who are the big two? Optus and Bigpond?

  12. I think the way groups/companies like the Comedy Channel operates online is one of the best examples of how ‘new media’ (or whatever we should call it) can and should operate. Take The Daily Show. Almost as soon as the episode airs they have it available as a highlights reel online and you can also opt to watch the full episode. Ad’s are placed at the beginning of the highlights and throughout the full episode where they had been in the broadcast. Additionally ad’s for other shows or products are littered through the website. This, in the end, works far better for advertisers. Plus it’s all ‘low’ internet quality streaming so you can’t save the episodes to your computer and have to go back to the view them or buy them to see a good quality version. In the U.S. various groups like HBO and the such have online viewing options and the ability to buy recent shows from places like iTunes for a relatively cheap prices. In terms of ‘keeping up to date’ with new media these are really good methods – consumer friendly whilst also preserving profit.
    I find the attack on ISP’s and the attempts to attack (behind closed doors) individuals who engage in piracy etc quite revolting and enraging. I don’t personally have a problem with piracy as long as it’s oh… ethical and considered? Download a mainstream film/television series to watch! Utilise YouTube and view copyrighted material! But then, I feel highly dubious when a hugely profitable corporation like Fox has a sob about all the ‘thievery’ (and it’s not stealing, it’s violating copyright), they’re a corporation make squillions of dollars, they’ll survive. And the comparisons to stealing bags or televisions etc are so bogus – yes, I wouldn’t steal from an individual – but I might take advantage of the high availability of the products of a corporation!

  13. Appropriate pirated IT Crowd Sketch About Piracy is appropriate.
    🙂

  14. Well if we’re going to get all youtube crazy: this video is great!
    caitlinate’s last blog post..

  15. The amazing Mark Newton covered why AFACT doesn’t have a leg to stand on a few months ago. Short version: rights holders negotiated immunity for ISPs several years ago, with a process for discovery of infringers’ details. Since they discovered (in the US) that suing end-users is horrible publicity, doing so in Australia leaves them liable for costs if they wrongly accuse, they decided to threaten ISPs.

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