Piracy and data-retention bedfellows produce best arguments against new laws

In one week, the Australian government argued that its own piracy site-blocking legislation is inadequate, while Labor said it would re-examine data-retention laws it helped pass only four months ago.

Somewhere in a backyard in Australia this past weekend, a young child was happily banging away at a nail with a plastic hammer, a cute image to be sure, but an ultimately futile one. Elsewhere in the backyard, there would have been an adult doing the actual work of using a real hammer, with real force, to accomplish the hammering task at hand.

On the subject of piracy and copyright infringement, the past week has shown the government only too happy to wield its plastic hammer, while acknowledging that the market and copyright owners have the real power.

Off the back of a report angled at showing how prolific Australians are at infringing copyright -- the material surrounding the report naturally went with the number that said 43 percent of Australian content consumers had infringed on copyright, rather than the 26 percent of all Australian internet users -- Communications Minister Malcolm Turnbull called for international action to tackle the issue and touted the recently passed piracy site-blocking laws as part of the solution.

But the very next sentence in the Minister's statement showed the actual solution.

"Rights holders' most powerful tool to combat online copyright infringement is making content accessible, timely, and affordable to consumers," he said.

In fact, the report found that only one in five people said they would stop consuming copyright-infringing content if they received a letter from their ISP saying their internet access would be suspending for piracy, and only 17 to 19 percent of respondents said they would change their ways if the ISP warned them that their account had been used to infringe, or they would have their connection speed reduced.

Warning notices of this type form the basis of the draft code that would see Australians get three chances to curb their infringing habits, or face having their customer details handed over to a copyright owner by court order.

Paradoxically for those wanting to turn a nation of so-called pirates into "legal" consumers, the survey said that users who pay for content while also consuming copyright-infringing content spend more than users who only consume non-infringing content.

Over a three-month period among respondents aged 12 and over, the survey found that those who consumed a mixture of copyright-infringing and non-infringing content spent on average AU$200 on music, AU$118 on video games, AU$92 on movies, and AU$33 on TV content. Consumers who only consumed non-infringing content spent only AU$126 on music, AU$110 on video games, AU$67 on movies, and AU$22 on TV; whereas pure copyright-infringing content consumers spent a mere AU$88 on music, AU$24 on video games, AU$53 on movies, and AU$8 on TV content.

However, the survey also found that the majority of spending on music and movies was not on the content items themselves.

"For both music and movies, the majority of the average spend was not from purchases of either digital or physical copies. In the case of music, this primarily consisted of concerts and gigs, and in the case of movies, this primarily consisted of going to the cinema," it said.

This result goes against the grain of wanting to block sites and sue consumers into oblivion to protect copyright owners. It shows that while unfettered infringement would lend itself to the storyline that Australia's creative industries are under existential threat, the optimal solution involves at least some access to unpaid and potentially copyright-infringing content.

It would appear that the old trope of downloading the album for free to see if it is any good, or giving it a first listen on YouTube but then going to the gig and buying the t-shirt, being better for artists has some weight to it.

As the FAQ on the minister's site said, this survey was conducted to set a benchmark upon which it would possible to measure "the impact of the government's measures to reduce online copyright infringement", but at the time it was conducted, Netflix had launched one day prior.

"It is unlikely that the results take into account Netflix entry into the Australian market," the FAQ said.

Given the rate at which video-streaming services are being adopted -- a sixfold increase in six months -- it is very likely that the next edition of the department's research will show an increase in users paying for content, and the average spend also heading up.

This result will be more due to the market, and the arrival of proper, timely, and easily available services in this country, and not an anti-piracy framework that is stuck in costs negotiation and has had to have an independent expert called in to break the impasse.

However, I would like to pre-emptively congratulate the government for what is sure to be a bumper report next time around, and for all the back-slapping it will surely do to sing the praises of site blocking.

On the supposed other side of politics, Labor took the extraordinary decision at its conference over the weekend to vote for a review into the mandatory data-retention legislation it helped enable only four months ago.

"These laws help create a culture of fear, a culture where we are all under suspicion and subject to heightened mass surveillance," New South Wales Labor MP Jo Haylen said.

Haylen was successful in getting the motion she seconded committing Labor to a review of the regulation of warrants and the list of agencies that can access the communications data.

Yet it replicates a pattern of behaviour that occurred when a Bill to expand ASIO's powers cleared parliament: Legislation is proposed by the government, Labor says it will look at the Bill "on its merits" before signalling its intention to pass the legislation with minor oversight changes, and, despite having its own parliamentarians give stirring speeches against its passage, makes it into law with its blessing.

In this instance, Labor was able to realise what it had done, albeit a third of a year after the fact, and who knows how many warrantless accesses to telecommunications data before it can review the legislation, if it ever does.

"We do not need laws that empower the attorney-general to add more agencies to that list on a whim and forever expand the government's access to our digital lives," Haylen said.

In the irony stakes, Haylen's astute observations on her party's own actions are right up there with the Department of Communications' self-defeating anti-piracy research.

The situation would be rather amusing, except that we are dealing with elected representatives and laws that will have a material impact on people's online and offline lives, and it should be concerning that these issues are only brought up after the laws are passed, rather than thoroughly considered when the legislation is before parliament.

But it's hard to expect more from a political process where site-blocking legislation was pushed through in three months and its sole hearing was attended by a single Labor senator and a Coalition senator.

No one should be surprised that bad processes deliver bad products, especially when it comes to technology and the law.

In the wake of Labor's decision to review the data-retention legislation, Attorney-General George Brandis took the opportunity to question the opposition's commitment to national security and the data-retention regime.

"Metadata is a vital investigative building block, which is central to virtually every counter-terrorism, organised crime, counter-espionage, cybersecurity, and child exploitation investigation. It is used in almost every serious criminal investigation, including murder, rape, and kidnapping," Brandis said.

"Bill Shorten and Mark Dreyfus must stick to their word and recommit the Labor Party to this legislation, which introduced important safeguards and oversight arrangements, including significantly reducing the number of agencies that can access the data. Mr Shorten must confirm that if elected, he will not repeal our data-retention laws.

"The Australian people deserve the certainty that our national security agencies will continue to have access to the data they need to investigate and interdict terrorist networks."

Considering that we elected this parliament, the attorney-general might be right -- perhaps with this parliament, we are getting what we truly deserve.