Piracy Journalism

There's a quote that does an occasional round of social media, "Journalism is something somebody doesn't want printed, everything else is public relations."  The quote is inaccurate in its wording and is usually incorrectly attributed to George Orwell or less frequently another source considered authoritative and recognisable on dystopia. The quote it is most likely derived from is from William Randolph Hearst; "News is something somebody doesn't want printed; all else is advertising.” 

It's no particularly challenging twist of logic to view this from the other angle and conclude that advertising or public relations is that which someone wants printed, almost always for their own profit.  Where it's not for profit, it's for ideology.  It's frequently both.

I've written at length both in Any Any and in other publications about copyright legality.  My position is that in Australia, copyright infringement in the form of downloading movies and music to watch and listen to without buying them is not illegal.  This position is supported by lawyers and copyright experts, it's supported by the copyright act.  When I tell people this they are frequently - invariably - surprised.  Some simply didn't know, and carefully inquire whether I think it's however it's a right or ethical thing to do (I don't). Most express some sort of disbelief and retort that it's theft (it is not, theft requires taking something off someone, which you cannot do with intangible rights), and still more refer blindly to the Copyright Act either assuming that it does set out offences that it doesn't, or veering off wildly into a subconscious transplant of the law of the United States into our own.  "No it's not illegal, but when you seed a torrent that is I think" is a common refrain that has its roots in a US principle from Hotaling v. Church of Jesus Christ of Latter-Day Saints and subsequent fights.  Still others argue that it's absurd semantics, and that any rights violation or injustice correctable by the legal system gives the green light to declaring that violation or injustice "illegal" - presumably those who argue this have not considered that this "illegalises" showing up to work at 9:17am contrary to a legally enforceable employment contract that sets out that the business day starts at 9:00am, and further makes criminals of anyone who pays a phone bill the day after the due date for much the same reason.

My purpose here is not to re-argue that point, it's been argued effectively to death.  I concluded not to argue it any further (except when I'm feeling particularly argumentative) when the Attorney General George Brandis said in the Senate Legal and Constitutional Affairs Legislation Committee;


Unlike the United Kingdom, New Zealand, Canada, the United States, France and many other comparable countries, Australia lacks any protection against online piracy.  

I can argue until I'm blue in the face, or I can just leave the field when the Commonwealth Attorney General concedes my view - even though a difference exists where he does so with a measure of regret at the situation that I don't really share.

So setting the issue of its legality aside, why do Australians continue to think that copyright infringement is illegal? And why, more importantly, do journalists continue to write about illegal downloading?  If it's not true, is it just what people want published, and therefore public relations or advertising?

Australians in general is an easy answer, that one is down to advertising, although not from writers who think they are doing journalism.  Since downloading copyrighted content from the Internet started its march towards being economically viable a concerted campaign of advertising has been waged by rights holders to equate piracy with theft or stealing.  The flagship ad in that war even directly did so, appealing to the market to apply the same introspective ethical test to infringing copyright as they do when they walk past a hot-wireable car or a handbag that isn't Kensington locked to a display shelf without stealing it.  George Brandis' reference to other "comparable countries" - contemporary western-style democracies - is also telling.  He was using the distinction between us and them to point our that we should do what they do, but at the same time he drew attention to the fact that in those countries legal sanctions do exist either through criminal offences for piracy or (largely failing) co-regulatory schemes with ISPs and government to confiscate Internet access from those who violate copyright provisions.  

A measure of the Australian perception that downloading movies is illegal, stems from the fact it is in a lot of other countries, and particularly in countries which form a large part of Australia's cultural exposure for movies and music.  An enormous amount of movies that Australians watch have an FBI warning at the beginning asserting that piracy is illegal.  Ironically the warning is usually only displayed on movies that have been legitimately acquired.

Journalists get caught up in this whitewashing as well, because they are after all people.  They see the FBI warnings, they read news about teenagers (and grandmothers, and printers) arrested in the United States for music sharing.  They also sympathise with the idea that getting the pleasure out of a creative work that someone created in the expectation it'd be lucrative is unfair, and join the expectation in Australia that unfair things in matters of business and commerce are routinely criminal.

Some journalists might dig into the issue a bit.  Myself or someone else might have been distasteful about an article on social media which describes infringement as something it isn't.  I've seen journalists check with lawyers to validate their original assumption which is a laudable and professional thing to do.  What's been disappointing the couple of times I've seen this done, is the journalist has approached an intellectual property lawyer who represents rights holders and they receive advocacy for their client's wishes interspersed with the sections of Australian legislation which most seem like they criminalise copyright infringement but don't quite.  "Well you can't go downloading movies and selling them to people no, who told you this wasn't illegal!" - this is true, commercial scale infringement is an offence, but that's not what the journalist asked.  Other kickers include advertising infringement and characterising VPN or DNS masking technology used to access US services like Netflix as "circumventing a technology protection measure", an offence under the act.  Circumventing geoblocking has been examined by a parliamentary inquiry into technology product pricing in Australia and the inquiry not only concluded that it was not circumvention of a TPM, but recommended government legislate to clearly point this out, and protect the rights of Australians to do it.  That recommended is as yet unheeded.

On top of the factors that create the impression on anyone in Australia that piracy is illegal, are the factors that a journalist has to dig deeper than they usually would, past agendas and vested interests they could usually safely stop at, to make a distinction that in their (and many other) minds is academic.  The only Pyrrhic reward out of doing so is to being factually correct on something that most people are misguided about anyway, and under the current government is likely to be changed to align with what they wrote.   The value of being precise is muted because everyone was rounding up and they'll soon be correct anyway.

I'd like to think journalists would persevere anyway.  Some - predominantly tech journalists - already eschew the term illegal in favour of "unauthorised", or "illegitimate" or use colloquialisms like "cheeky."  These are great, because they are specific and correct and they exclude the wrong word "illegal."  A word that isn't supported by the facts, only supported by an agenda.  A word that someone else wants to be published.  Advertising.


Opal is Unsafe

On the 15th of this month, Transport for New South Wales issued a media release in the wake of revelations that they will disclose personal information about the users of the Opal ticketing system to the police without due process.  That release did more harm to Transport for New South Wales' case that it did help.

From the release;

When customers sign up to Opal, the Privacy Policy is written in plain English to make it clear that Transport for NSW may disclose information under certain strict rules.

This is invalid. The "certain strict rules" don't matter unless they are the specific strict rules that everybody reasonably expects when it comes to police delving into our private lives; those rules are that police require a warrant.

It has been globally held for decades and decades that because police have the ability to demand our information, take our possessions or make us do things, that there needs to be a formalised process around it to make sure that it isn't abused.  That process is warrants.  If police believe they need to exercise their power, then they need to convince a process of judicial oversight that the exercising of that power is not abusive.  This isn't the best test of whether police are doing the right thing, it's the only acceptable test.  

Customers can be assured Transport for NSW may only disclose information to a law enforcement agency that is necessary for law enforcement purpose

We can not be assured of this at all, because the sole valid measure of assurance that information disclosed to police is necessary, is that police were able to secure a warrant to demand its disclosure.  In no other circumstance can we be assured.

Protecting people’s privacy is very important but...

I'm not racist but, I don't mean to be rude but, I hear what you're saying but...

if in some situations Police need this data to help solve crime and protect the public then there is a responsibility to provide it.

If in some situations Police need this data to help solve crime and protect the public then there will never be a problem in them securing a warrant.  If a police officer is doing it because they have a recreational interest in people's activities, or are stalking an ex-partner, then they will be unable to secure a warrant because they will be unable to convince a magistrate that they need a warrant.  Transport for New South Wales' responsibility is the opposite of what they've stated in the release.  It is their responsibility to not provide the information unless due process is followed.  Anything else is violation of a moral right to privacy and a reprehensible abuse of the role of custodian of personal data.

The Problem with Problem Solving

Commerce and industry is about fixing problems.  If you have the problem that you're hungry, a shop will sell you a solution in the form of a sausage roll. If you have bought something in another country, a postal service or courier will bring it to your door (usually). The two problems that Hollywood made an astonishing amount of money solving was that it was difficult or impossible, and in any event extraordinarily expensive, to create and distribute movies.

An entire half of that problem is solved.  It's not a problem anymore.  The decades of shining light through sixteen frames per foot of 35mm cellulose nitrate, the decades of arranging the magnetic fields on a thin strip of plastic so that it can be played in Victor Company of Japan's VHS systems, the poking of small pits 500 nanometers wide, between 830 and 3000 nanometers long and 150 nanometers deep in a polycarbonate compact disk all range from trivially easy and inexpensive through to total anachronisms.  Physical media that contains a creative work is dying or dead, where it continues to be used it is production quality, consumer-available and logistically effortless to obtain and distribute. Nobody's hungry, no market for sausage rolls.

The second half of the problem is partly solved.  The production of creative works is available to everybody.  Most people reading this article have in their possession an 8 megapixel high definition video camera attached to a  120mm x 60mm 1.3Ghz computer, with enough storage capacity to keep hours of high definition video, connected via the Internet to every other pocket supercomputer with a high speed HSDPA modem.  If you want to create art, there is no longer the requirement to have millions of dollars worth of real estate and equipment in Burbank California.  Of course movie studios still make creative works, and they spend between five and two hundred million dollars to do so, but their unique monopoloy on creation of commercially successful artistic work in motion pictures is gone.  Some parts of the industry understand the decentralisation and commoditisation of movies, with theaters long ago moving to a business model around selling popcorn and soda as their primary revenue stream.  People go to the cinema as a distinct choice - for an experience, for a choc-top and to catch up with friends they keep meaning to catch up with.  

One of the two things Hollywood does, isn't needed at all.  The other isn't as needed as it was, and Hollywood doesn't possess the only means of solving that problem.  So what is an industry faced with declining profitiability to do?  What is the agenda for a doffer, a limner, seneschal, an ice hockey rover or any of the other problem solvers whose problems are solved on Wikipedia's Category: Obsolete Occupations?

In the modern day, you blame, lobby and litigate.

Graham Burke is rapidly becoming the most prolific oversharer of feelings relating to piracy, the movie industry, and how piracy is the problem with the movie industry's relevance.  Piracy of course isn't by itself a threat to Hollywood, Hollywood has a crisis of relevance created by other people being able to solve the problems Hollywood solved, in large part without generating profit for Hollywood.  Piracy is one example of that, but not the way Burke says.

In a Sydney Morning Herald piece a few days ago entitled "End Piracy and Bring Google to Heel", he creates as much noise as possible to divert attention from Hollywood's crisis of relevance and control over profitable problem-solving.  Blaming technology is a weak suit, but Burke's not holding a lot of cards.  Roadshow Films Pty Ltd & others v iiNet Ltd was fought out and lost by him from 2010 through to 2012 and most of his idealogy about what the copyright industry's problems are and who's responsible for them were dashed against the rocks.  He tries to play some cards not dealt with (or not entirely dealt with) in that decisive defeat in his op-ed.

Our Attorney-General George Brandis is attempting to reform our copyright law. Meanwhile Google, one of the multi-national companies attempting to avoid paying tax here, is lobbying in Canberra to stop this, by putting forward the following six fundamentally misconceived arguments.

That's a glass house to be throwing stones in.  Village Roadshow is an astonishingly prolific electoral donor and at one point in the last few years paid more money into government coffers than any organisation bar the key major party donors such as unions and business groups.  From 2007 to 2008 alone Village donated $482,791.00 to both political parties (favouring the government).  Its Austereo subsiduary coughed out another $211,958.00, a hundred grand a piece to each major party and a ten thousand dollar bonus to the government. In 2009-2010, they donated $72,450.00, in 2010-2011 they donated $869,224.00, then in the most recent 2012-2013 reporting period $337,004.00.  Village Roadshow's tax position is opaque, but when it comes to giving money to the government they volunteered pennies shy of two million dollars in the last handful of years.

Its contention that implementation of piracy legislation would have little effect. There is proof in Europe and Korea, which received high-speed broadband early, that legislation done in concert with legally available product and education is in fact conclusively effective. Overwhelmingly, most people are decent and honest. They would no more illegally download than go into a department store and steal a book or a DVD.

No there isn't Graham.  There's comprehensive evidence in every jurisdiction that's tried the quarter-arsed ideas you're piping into attorney general George Brandis' ear, that they simply do not work.  Central to why Burke is wrong here is the idea that movies are like a butcher which doesn't do a sample sausage sizzle on the footpath outside the shop for fear people will eat them and not buy.  Consumer behaviour in the face of a commercial product and a competing product that's free is complicated.  Pressure to do what Hollywood wants, and to not do what Hollywood doesn't want, has mixed results everywhere the pressure is applied.  People will take the free samples.  People will buy the sausages.  People will do both, and people will do neither.  The only constant is that some people do, and will always, consume content and not pay the person with a commercial interest in it.

The assertion that the proposed legislation supports big business. The opposite is the case as it is the creative people working in production, cinema and television who are good and decent tax-paying Australians who will lose their jobs. About 910,000 people depend upon copyright protection for their livelihood. My company Village Roadshow is public and all shareholders are Australian.

This 910,000 figure is adorable but of course entirely false.  By now your head should be doing some rough division for the second time after the first calculation yielded an unlikely scenario where one in twenty-five-ish Australians apparently work for Hollywood.  The trick to understanding the trick is to understand how Hollywood maximises the numbers.

It's in the industry's best interests as you transition your business model from being a company that solves problems to being a company that lobbies for the exclusive legal right to solve problems, that you maximise the people you claim to be lobbying on behalf of.  Politicians have a weak spot which is directly proportionate to the depth of the queue at their electoral office that any particular decision may create.  Saying the government refusing to do what you say affects 30 people is not useful, saying it affects basically everybody is.  The Australian Screen Association (formerly AFACT), revealed how this number comes about when several years ago they released a curriculum package for Australian schools designed to indoctrinate them into being copyright enthusiasts.  Part of this curriculum package was a Flash web game which represented a town with various people going about their day.  Players were invited to click on people they felt were not connected to the copyright industry, and were unwaveringly corrected in every instance by pointing out how every single person in the fictional community is affected.  The film producer? Affected. The guy down the road that operates a coffee shop? Also part of the 910,000 because he sells a weak, warm, soy flat white with half an Equal to the film producer.  See how we're all intertwined?  Corporatism is wonderful.

Google says the proposed three strikes policy is too draconian. Overseas experience has shown that most people, when it is pointed out that it is theft, stop illegal downloading. For the others, if there is a meaningful deterrent it will almost never be used and piracy will cease. Like parking in a towaway zone!


The primary problem with three strikes or "graduated response" as the industry likes to term it, is less that it's draconian and more that it's expensive and based on accusations, not convictions.  If you park in a tow away zone it's obvious, and your car will be removed.  If Graham Burke rings the NSW Roads and Maritime Service and insists that he saw you park in a tow away zone once, he'll be roundly ignored.  In New Zealand this, together with the cost of implementing the scheme resting on the record labels rather than the ISPs, is why three strikes has failed.  The first case in that jurisdiction was dropped after the accused didn't know what file sharing was and had to have it explained to her, and RIANZ demanded $1075.00 as the cost of the five tracks the share-house dweller's flatmates reportedly downloaded.  New Zealand continues to infringe copyright with gay abandon.

I say to Mr Google, turn the question around. Why shouldn’t the government legislate against theft? Change the name from piracy which connotes something roguish and even romantic. Recognise why piracy is a lose/lose equation. Workers get hurt and good content gets cancelled.

Mr Google?


The government has legislated against theft Mr Burke.  The problem you have, is piracy is not theft.  Piracy is people almost absent-mindedly solving a problem you used to get paid to solve, and you're flat out accussing Google, iiNet, the Internet and everything else in your path as being culpable.

And if all you've got is "why shouldn't the government legislate to fix my problem?" as a closing to a meandering, factless article, this may yet be a short fight.

Bear Market

Josh Taylor's piece in ZDNet today about the AIIA, which represented Oracle, Apple, IBM, Microsoft et al at the July 2013 IT inquiry, does a great job of exposing one of the primary problems with the inquiry, the debate around it, and regional pricing in general.

To catch up anyone unfamiliar with the inquiry, it primarily undertook to examine why Australians pay, on average, a very significant amount more for identical software and intellectual property based products than overseas counterparts, in particular the United States.

The AIIA shocks precisely nobody when it objects to scrutiny and momentum for change on this issue, but Taylor's quote of a spokesperson from the industry captures the most interesting point.

"Each market 'bears' a price that reflects relative levels of demand and supply, as influenced by consumers' willingness to pay and levels of demand/supply side substitution," the AIIA said.

Ok, so what part of the support for and subsequent conducting of a parliamentary inquiry into the practice leads the AIIA to consider that the market is "bearing" the prices?

Game of Groans

The "what shall we do about piracy" debate is heating up in Australia.  In a blog post titled What's the Issue with Piracy in Australia iiNet's chief regulatory officer Steve Dalby takes a few free kicks at a content industry that he predicted would seek regulatory reform after having failed irrevocably in the courts of law.  That piece is worth reading in its entirety, because it makes a few salient points that are going to become important as the industry which has this governments' ear even more than the previous one (no small feat), continues to set the legislative agenda to an attorney general who is notoriously enthusiastic about Hollywood's profits. George Brandis also arguably uses his peripheral position as minister for the arts to couch the matter in the usual terms of protecting a fledgling industry's precarious revenues from a media consuming public that will snatch the pie fresh from the oven if given half a chance.

Those points appear lost on the CEO of Copyright Licensing NZ and chair of New Zealand's copyright council, Paula Browning.

It's fairly astonishing that the CEO of an oceanic copyright council doesn't know what GoT is, George R. R. Martin's Game of Thrones series has been the poster child / whipping boy of big content globally and particularly among the conservative press in Australia.  It's the most pirated television series around and depending how you measure, Australia is one of the most enthusiastic copyright infringing countries on Earth, so Game of Thrones has a lot of potential talking-points for the champions of making consumers walk the plank.  Browning hasn't just missed the mark there though.  She may actually just not be in touch with the media she advocates and that's neither here nor there, but the following is a single point I'd like to tackle in this article and it's a lot less subject to her media consumption habits - it's a key talking point in the copyright lobbying industry and it needs to be put away, here in addition to what Dalby goes over in his post.

This is fundamentally arse-backwards.

A popular talking point amongst the copyright lobbying industry, key supportive government officials and a handful of conservative press commentators that enjoy writing copy about law and order issues (but are concerned about readership fatigue in the face of stories about elderly people's homes being invaded by youth in south western Sydney) is that ISPs should do something about piracy (which is a genuine problem we're assured). These commentators say ISP won't act, because of the impact on their P&L sheet.  What's particularly amusing about this otherwise expected misunderstanding of non-Hollywood businesses models by an industry that is protecting Hollywood's one, is not only is it wrong but it's the exact opposite of right.

Entertainment media revenues are dictated by the number of people who pay margins on consuming entertainment media through a variety of distribution channels.  If you pay $15 for a record, the publisher takes about $13 of it and distributes the rest to various other people involved, including a few coins to the creators.  The more people who undertake to consume media through these channels, the more the business' service is used by its consumers, the more money the publisher makes.  The ideal media consumer according to the industry is one that uses the industry's products and services as much as possible, paying more revenues and adding only a handful of additional distribution costs for much fatter profits.

For a counter example, gyms like Fitness First and the various other lycra temples that dot urban Australia, don't make money this way.  Their business model is based on charging fixed amounts to subscribers and their revenue is a simple product of the amount of subscribers in various membership classes multiplied by the subscription costs in those membership classes.  A thousand subscribers at $50 a month is $50,000 in revenue that period. Maintenance costs for equipment, staffing levels, cost of utilities such as hot water and electricity to run the showers and equipment are the variable and the more that members actually show up to the gym that day and run the treadmill a few more kilometers towards its end of life cycle the less profitable it is.  The ideal gym consumer according to the industry is one that pays a subscription fee so they can go if they feel like it but rarely if ever shows up, using the products and services as little as possible to minimise costs which scale against revenue to the industry.

There's the two ends of the spectrum of commerce.  Revenues that scale as a margin over costs similarly scaling costs, and costs that scale as a margin under revenues.  Which model is an ISP?

ISPs are like gyms, not Hollywood.  And Hollywood can't get its head around it. ISP subscribers almost exclusively pay a fixed monthly cost to access a maximum possible volume of service which the ISP hopes they'll never actually use.  The ideal ISP subscriber buys the Fitness First Platinum package with the personal trainer option, and then sits in KFC eating two Double Downs and drinking a large sized Mountain Dew.  An ideal ISP subscriber buys a three figure, multi-hundred gigabyte monthly subscription which they use to check Facebook here and there, receive email, and pay the odd bill.  This is the ISP subscriber whose usage of the service creates the least upstream cost for the ISP (who has to in turn buy the capacity off other providers), but who pays the most in fixed revenue for the potential usage of the service.  Copyright infringers are actually the worst customers of ISPs, because they show up to the gym and run the rowing machine into the ground, drink all the Gatorade samples and leave with a branded backpack full of hire towels.

Big (and medium) Media sincerely believes that ISPs can and should solve what they assert is a problem in piracy, and have repeated that mantra so often they've somehow convinced themselves that it is true and have moved to a secondary phase of searching for an explanation for it; because entertainment media companies only understand their own business model (if they even do, some don't know what Game of Thrones is), and their only option is to erroneously apply it to other businesses.  Because their business model multiplies widgets sold by the profit margin on them (revenue less costs), that's what they say ISPs do, and it's why they say ISPs won't fix the "problem" of piracy.

It's a long road ahead against a cornered, confused and belligerent industry.  A road chauffeured by sympathetic ears in government. There's a lot of ingrained misconceptions and falsehoods, and it's going to get very bumpy.