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.