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 to block entire websites
with 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 entire sites
. Instead, it just takes for granted that "copyright infringement poses a
significant threat to the viability and success of Australia's creative industries" and thus something must be done!
Even 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:
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
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.
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:
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
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:
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.
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, nearly every
new 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.