The Australian government’s review of copyright enforcement measures aims to ensure that responses to infringement are “appropriate, effective and proportionate.”
The Attorney-General’s Department released an issues paper for public consultation late 2022, presenting a golden opportunity for rightsholders to explain why measures they fought so hard for are no longer fit for purpose. Or at least that’s how things usually play out.
Leading With The Positives
A wide range of stakeholders filed submissions during the public consultation but since movie and TV show companies feature most prominently in online enforcement actions, their framing of the current piracy situation is of particular interest.
The ‘Australian Film/TV Bodies’ submission is the work of mostly American companies including Disney, Netflix, Paramount, Sony, Universal, Warner, plus local studio Village Roadshow, cinema groups and distributors. No other rightsholders have more experience of blocking injunctions.
The overarching positive tone in the studio-led submission comes as no surprise. It carefully highlights how good industry advice and wise decisions by the Australian government led to positive reforms, not least the “highly effective” no-fault site blocking regime introduced in 2015. Coupled with the market “making content readily available online for reasonable prices” the Australian copyright system supported the market and a “potential free-for-all” was avoided.
The clear message in the submission is that the studios requested the right measures and since the government’s judgement was solid, everything went according to plan. Changes requested as part of the current consultation aren’t to fix any past shortcomings, the submission suggests, they’re about meeting future challenges using a tried-and-tested approach.
Good News / Good Cop
The companies behind the ‘Australian Film/TV Bodies’ submission say their use of Australia’s site-blocking provisions has resulted in the blocking of over 2,000 infringing domains since 2015. Citing government research demonstrating the efficacy of these interventions, successes are clear.
“In 2015 lawful online consumption of TV was the lowest of all entertainment categories tracked at 51%, growing to 74% in 2022. Online TV consumption increased from 67% to 78% over the same period. Unlawful consumption of Film, meanwhile, went down from 49% in 2015 to 26% today, and TV went down from 33% to 22%,” the companies note.
With direct thanks to the Australian government for its “progressive” copyright policy, the submission recalls that in 2018, traffic to blocked sites declined by 53%. Efficacy today is reportedly at 75%, although blocking can be circumvented by pirate site operators and users alike, the submission adds.
Bad News / Bad Cop
The circumvention claim is presented in more detail in a submission from Creative Content Australia. In common with the Australian Film/TV Bodies, CCA’s members include Disney, Netflix, Paramount, Sony, Universal, Warner, local studio Village Roadshow, plus cinema groups and distributors.
The ‘Australian Film/TV Bodies’ report cites CCA research to back up its own claims, despite the groups sharing the same core membership of the same major studios. However, while the former moderates negativity in its submission, the studios are much less constrained when wearing their CCA hats.
“[P]irate operators – mostly based overseas in countries like Russia and Vietnam – make no investment in original content, leeching off the efforts of others, and pay no taxes, leaving Australia worse off overall,” the CCA submission reads.
“Their operations might look increasingly sophisticated, mimicking the interfaces of streaming services, but these sites are overwhelmingly run by organised crime,” the submission adds, noting that money is generated from malicious ads, ransomware, hacking and identity theft.
The sites aren’t named and the claims aren’t new. Proof is in short supply too but persistent anecdotal evidence suggest the claims most likely hold water. Whether that means imminent disaster for Australia is unclear but it’s an opportunity to important to miss.
“The safety of Australians is increasingly at risk, and urgent changes are needed to stop this problem in its tracks,” the submission warns.
Site Blocking Works, But Also Doesn’t
The CCA submission states that current site blocking measures can lead to “positive behavioral change.” Citing its own research, the group says that half of all ‘Active Pirates’ (49%) have seen site blocking in action and that was enough for 26% to give up searching and 11% to seek out a legal source.
“Unfortunately, the majority of infringers who experienced a blocked site simply continued their piracy journey with 29% continuing to search for the same illegal content and 22% going directly to a pirate site that they already know of,” CCA reports.
“Of the total Active Pirates surveyed by CCA, 51% are not impacted by site blocking at all, thanks to circumvention techniques to navigate around site blocks, thus removing any friction caused by site blocking completely to seamlessly access pirated content.”
So how bad is the situation in Australia? Citing a report from the MPA, which comprises CCA’s own core members, which in turn are also behind the Australian Film/TV Bodies submission, the situation is very bad indeed.
“The staggering volume of Australian’s pirating is all the more unbelievable when considering recent analysis of SimilarWeb data carried out by the Motion Picture Association which found there were 1.8 billion visits to pirate sites from IP addresses based in Australia in 2022, representing a 10% increase on 2021,” the CCA adds.
Targeting DNS Providers
According to both the Australian Film/TV Bodies and CCA submissions, Australian pirates are circumventing site-blocking measures on a grand scale. By switching away from their ISPs’ DNS services and using DNS provided by Google, OpenDNS and others, site-blocking injunctions are neutralized in a minute. Both submissions agree on what should be done and how it can be achieved.
In 2019 both Google and Bing agreed to remove pirate site URLs from Australian search results when those sites were listed in blocking orders. Google’s own consultation submission describes this as a voluntary action as part of its overall commitment to combating piracy. The Australian Film/TV Bodies submission states that voluntary actions only exist because of a credible threat of being held liable for infringement.
In 2018, the Australian government rejected calls from the movie and TV industry to expand site-blocking legislation beyond consumer ISPs to other online intemediaries; DNS providers, for example. While Google agreed to the deindexing of sites from search results, it refused to censor its DNS service. The studios suggest that companies like Google will only consider ‘voluntary’ measures against DNS if the law leaves them no other choice.
Recommendations
There are additional proposals in the combined submissions but the key recommendations are as follows:
– Require intermediaries to implement blocking, DNS providers included
– Speed up blocking orders to mitigate pirate countermeasures
– Establish a dedicated IP Task Force, prioritize intellectual property crime
– New law to combat use of technology (e.g IPTV boxes) to circumvent access controls
– Require intermediaries to verify identities of customers and account holders
– Allow rightsholders to obtain customer data for enforcement purposes
The submissions referenced above can be found here (Film/TV, CCA, Google)
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