tag:theconversation.com,2011:/uk/topics/illegal-downloads-3649/articlesIllegal downloads – The Conversation2021-08-17T05:49:55Ztag:theconversation.com,2011:article/1660902021-08-17T05:49:55Z2021-08-17T05:49:55ZThe more video streaming services we get, the more we’ll turn to piracy<figure><img src="https://images.theconversation.com/files/416433/original/file-20210817-22-evwrgm.jpg?ixlib=rb-1.1.0&rect=0%2C81%2C6016%2C3044&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>With the launch of the <a href="https://www.paramountplus.com/">Paramount+</a>, Australian consumers of video streaming are arguably drowning in choice. </p>
<p>We now have more than a dozen “<a href="https://www.canstarblue.com.au/streaming/australia-streaming-services/">subscription video on demand</a>” services to choose from, with many dozens more options available <a href="https://flixed.io/complete-list-streaming-services-2021/">worldwide</a> to anyone with a VPN to get around geoblocks. </p>
<p>But all this competition isn’t actually making things easier. It’s likely all this “choice” will see more of us turning to piracy to watch our favourite films and televisions shows.</p>
<p>The problem is that services are competing (at least in part) through offering exclusive content and original programming. </p>
<p>Paramount+, for example, is offering content from Paramount Pictures and other entertainment companies owned by entertainment conglomerate ViaComCBS. These include Showtime, Nickelodeon and Comedy Central. Its catalogue ranges from the Indiana Jones and Harry Potter movies to popular TV shows Dexter, NCIS and The Big Bang Theory. </p>
<p>This content may have been available on your preferred services. But <a href="https://www.abc.net.au/news/2021-08-11/guide-to-paramount-plus-shows-price/100367094">the end goal</a> — as with Disney+ and others — is for all ViaComCBS-owned content to be exclusive to Paramount+.</p>
<p>Here the problem for the consumer becomes evident. How many subscription services do you want to join? Subscribing to the six most popular video streaming services — Netflix, Stan, Disney+, Amazon Prime Video, Binge, and Apple TV+ — will cost you about $60 a month. How much more are you willing to pay for a new service to watch a favourites film or TV show now only that service?</p>
<p>The temptation to turn to piracy is clear.</p>
<h2>Losing aggregation</h2>
<p>The emergence of video streaming services such as Netflix <a href="https://doi.org/10.1287/mksc.2020.1256">was heralded</a> as an effective way to curb illegal downloads. But how Netflix did this at first was in aggregating content. It provided a convenient, cost-effective and legal way to access a large catalogue of TV shows and movies; and consumers <a href="https://www.bbc.com/news/technology-24911187">embraced</a> it.</p>
<p>But as the streaming market has developed, the loss of content aggregation appears to be leading back to piracy. </p>
<p>As an example, according to analytics company Sandvine, the file-sharing tool BitTorrent accounted for 31% of all uploads in 2018; in 2019 it was <a href="https://www.sandvine.com/hubfs/Sandvine_Redesign_2019/Downloads/Internet%20Phenomena/Internet%20Phenomena%20Report%20Q32019%2020190910.pdf">45%</a>. As Sandvine explained:</p>
<blockquote>
<p>When Netflix aggregated video, we saw a decline in file sharing worldwide, especially in the US, where Netflix’s library was large and comprehensive. As
new original content has become more exclusive to other streaming services, consumers are turning to file sharing to get access to those exclusives since
they can’t or won’t pay money just for a few shows. </p>
</blockquote>
<p>This trend has been amplified by COVID-19 lockdowns, with traffic to illegal TV and movie sites reportedly <a href="https://www.wsj.com/articles/coronavirus-lockdowns-lead-to-surge-in-digital-piracy-11587634202">surging in 2020</a>. A survey for the Australian Government found <a href="https://www.communications.gov.au/documents/2020-consumer-copyright-infringement-survey">34% of respondents</a> consumed some form of illegal content in 2020. </p>
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<strong>
Read more:
<a href="https://theconversation.com/will-amazons-purchase-of-mgm-mark-the-end-of-netflixs-reign-162158">Will Amazon's purchase of MGM mark the end of Netflix's reign?</a>
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<h2>Lessons from music</h2>
<p>Why should this be happening more for TV shows and movies and not for music?</p>
<p>There’s an important difference. Services such as Spotify, Apple Music and Tidal offer you just about all the music there is. You don’t need to sign up to one to listen to The Beatles and another to hear Taylor Swift. You need only sign up to one.</p>
<figure class="align-center ">
<img alt="Music streaming services have the benefit of being a one-stop shop." src="https://images.theconversation.com/files/416459/original/file-20210817-23-1p4vqhj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/416459/original/file-20210817-23-1p4vqhj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/416459/original/file-20210817-23-1p4vqhj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/416459/original/file-20210817-23-1p4vqhj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/416459/original/file-20210817-23-1p4vqhj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/416459/original/file-20210817-23-1p4vqhj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/416459/original/file-20210817-23-1p4vqhj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Music streaming services have the benefit of being a one-stop shop.</span>
<span class="attribution"><span class="source">Ymgerman/Shutterstock</span></span>
</figcaption>
</figure>
<p><a href="https://doi.org/10.1086/425103">Research</a> has shown that a consumer’s willingness to pay is often anchored around the initial information they are exposed to. Viewers accustomed to paying for one streaming service might be reluctant to pay for as many as six.</p>
<p>In a survey of about 3,000 US TV watchers in February, <a href="https://www.fastcompany.com/90637380/56-of-connected-device-users-are-overwhelmed-by-the-number-of-streaming-services-to-choose-from">56% said they felt overwhelmed </a> by the number of streaming services on offer. </p>
<p>Deloitte’s <a href="https://www2.deloitte.com/content/dam/Deloitte/au/Documents/technology-media-telecommunications/au-deloitte-tel-media-consumer-survey-2019-report.pdf">Australian Media Consumer Survey 2019</a> found that almost half of streaming video on demand subscribers said it was hard to know what content is available on what service. Three-quarters said they wanted the content in one place, rather than having to hunt through multiple services.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/stream-weavers-the-musicians-dilemma-in-spotifys-pay-to-play-plan-151479">Stream weavers: the musicians' dilemma in Spotify's pay-to-play plan</a>
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</em>
</p>
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<h2>Seeking a one-stop shop</h2>
<p>Although it is not yet clear how many video streaming services the Australian market can support, high-profile failures both <a href="https://www.cnet.com/tech/services-and-software/goodbye-presto-foxtel-seven-west-media-streaming-service-to-shut-down/">at home</a> and <a href="https://www.fool.com/investing/2020/11/18/reasons-why-quibi-failed-other-streaming-services/">overseas</a> should serve as a warning. </p>
<p>But in the absence of a legal one-stop-shop for TV and movies, people will take matters into their own hands. </p>
<p>Illegal streaming platforms that aggregate content from multiple video streaming services into a single interface are becoming more widespread. Such services typically use an open-source media player, coupled with cheap <a href="https://www.firesticktricks.com/jailbreak-fire-stick.html">jailbroken hardware</a> and a VPN to access a plethora of illegal entertainment. </p>
<p>Until the industry offers a legal alternative to such platforms, the popularity of such services is only likely to grow.</p><img src="https://counter.theconversation.com/content/166090/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>All this ‘choice’ in streaming video on demand is undermining the market benefits of aggregation.Paul Crosby, Lecturer, Department of Economics, Macquarie UniversityJordi McKenzie, Associate Professor, Department of Economics, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1011622018-08-09T15:15:54Z2018-08-09T15:15:54ZThe rise of cyberlockers: how online piracy is fighting back<figure><img src="https://images.theconversation.com/files/230871/original/file-20180807-191044-1x10haf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/computer-transfer-download-failed-data-stop-474598984">Shutterstock</a></span></figcaption></figure><p>Illegal downloading is on its way out. A <a href="https://www.bbc.co.uk/news/entertainment-arts-45042838">new report</a> released by polling firm YouGov has found that only 10% of people in the UK now use illegal downloads to access music, down from 18% in 2013. And the recently released <a href="https://www.ivir.nl/projects/global-online-piracy-study/">Global online piracy study</a> from the University of Amsterdam argued that entertainment streaming services such as Spotify and Netflix mean that far fewer people are accessing copyright-infringing content.</p>
<p>Despite this, pirated songs, films and TV shows are still widely available online. For example, the Amsterdam study also found that 36% of the UK population has accessed illegal content online in the last year. The shift from downloads to streaming is real but it hasn’t solved all the entertainment industry’s problems because piracy has also shifted in a similar way. A growing fraction of illegal content is now accessed through streaming “cyberlockers”, YouTube-like websites often used to upload and share video content without permission. There has recently been significant growth in their use, <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/628704/OCI_-tracker-7th-wave.pdf">with 10% of infringers using cyberlockers in 2017, up from 4% in 2016</a>.</p>
<p>Together with my PhD student Damilola Ibosiola and other colleagues, I <a href="https://arxiv.org/pdf/1804.02679.pdf">recently published research</a> showing that most illegal streaming cyberlocker content is distributed by just a handful of providers, as opposed to the millions of people who used to share files illegally through peer-to-peer downloading software. This might make it easier for law enforcement to contact the host of an illegal file, but it also means that they are up against people with extensive experience in evading detection. As a result, the pirates are constantly fighting back.</p>
<p>Because of this, we wanted to understand how the cyberlockers used by pirates operate, and shed light on this murky domain. We built software to monitor the videos uploaded onto popular cyberlockers, as well as “indexing websites”, which maintain a directory of links to reliable sources of videos on cyberlockers. In total, we identified over 795,000 links.</p>
<h2>How it works</h2>
<p>What we found was truly fascinating, a dynamic ecosystem of competing players, constantly striving to evade detection and being forced to takedown content. This is perhaps not surprising given our observation that these operations were apparently very fragile.</p>
<p>For example, one website we studied was taken offline three months into our measurements. But these kinds of departures were also complimented by various new cyberlocker arrivals. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/230874/original/file-20180807-160647-1sgvdn6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Accessing illegal online content is still common.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/online-movie-stream-mobile-device-man-728322208?src=8fc66K2izADySXQ6W0pmPA-1-0">Shutterstock</a></span>
</figcaption>
</figure>
<p>All seemed in a constant flux, with links being added and deleted regularly. A total of 55% of cyberlockers saw growth during our measurement period, while 45% saw a decline. But the apparent diversity of cyberlockers may be rather superficial. By examining certain features of the sites to infer potential relationships, we discovered that, in many cases, individual operators were running multiple different websites.</p>
<p>A total of 58% of all videos that we monitored were held by just two major hosting providers, although from the outside they appeared to be dispersed across 15 apparently independent cyberlockers. This meant action against one company could take down a huge chunk of illegal material. </p>
<p>Our guess was that this was largely a product of the cat-and-mouse game played between cyberlockers and copyright enforcers. These enforcers monitor popular websites to identify infringing content, and then use legal notices to request its removal. </p>
<p>We observed cyberlockers use many techniques to fly under the radar of these enforcers. A total of 64% of the sites we studied did not have search features, making it difficult to find content from their front page, and 42% obscured their true content by hiding it among various obscure copyright-free videos.</p>
<p>To get an idea of how successful the copyright enforcers were, we also used data from <a href="https://lumendatabase.org/">Lumen</a>, which records cease and desist letters concerning online content. We were surprised to find that 84% of the notices we monitored were apparently acted upon, with cyberlockers taking down the content. What was less surprising to find was that it usually wasn’t long before the very same content emerged elsewhere (often on the same cyberlocker under a different page).</p>
<p>It seems that online piracy is less of a technical game, and more of a socioeconomic one, with pirates and law enforcers constantly innovating around each other. In most cases, both sides of the debate are driven by financial incentives. It therefore seems likely that the long-term solution will be for the media industry to create new business models that deplete those incentives. Until then, the game will continue.</p><img src="https://counter.theconversation.com/content/101162/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gareth Tyson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>‘Cyberlocker’ illegal streaming sites are in a constant cat-and-mouse struggle with law enforcement.Gareth Tyson, Lecturer in Computer science, Queen Mary University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/704732016-12-15T06:36:30Z2016-12-15T06:36:30ZBlocking access to illegal file-share websites won’t stop illegal downloading<p>The Australian Federal Court <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca1503">ruled today</a> that TPG, Optus, Telstra and other internet service providers (ISPs) must take “reasonable steps” to <a href="https://www.cnet.com/au/news/australian-isps-block-the-pirate-bay-rights-holders-pay-village-roadshow-foxtel-telstra-tpg/">stop customers accessing</a> file-sharing websites The Pirate Bay, IsoHunt, TorrentHound and Torrentz. </p>
<p>In total, Australian ISPs must block access to 61 domains registered to these four websites, or to the IP addresses specifically listed in the orders. </p>
<p>The court also ordered that addresses belonging to SolarMovie be blocked, even though it is no longer operational.</p>
<p>Importantly, the court refused a request that the ISPs be required to ban new domains or IP addresses as they pop up (the “<a href="https://en.oxforddictionaries.com/definition/us/whack-a-mole">whack-a-mole</a>” problem). This is a win for due process, because it ensures that the court maintains control over the process. </p>
<p>But it also shows that this is largely a symbolic victory. The experience from overseas shows how easy it is for a site such as The Pirate Bay to <a href="https://theconversation.com/blocking-piracy-websites-is-bad-for-australias-digital-future-34418">change its address</a> faster than courts can keep up.</p>
<p>Consumers can also easily use <a href="https://theconversation.com/unfazed-by-court-cases-downloaders-continue-but-turn-to-hiding-their-tracks-40120">VPNs and proxies</a> to access the sites through private and secure connections.</p>
<p>The court ordered ISPs to block access within 15 business days of its decision. After this time, any user trying to access one of the blocked domains will be redirected to a webpage established by copyright owners, which will inform them that the domain has been blocked because of copyright infringement.</p>
<p>The Federal Court’s orders will be in effect for three years. During that time, if The Pirate Bay or any of the other websites operates from a different domain name, IP address or URL than those listed in the order, copyrights owners may apply to have the order extended to the site’s new location.</p>
<h2>First use of new powers to block websites</h2>
<p>This case is the first use of a new law, introduced in 2015, that allows copyright owners to apply to the Federal Court for an order requiring ISPs to block access to foreign-hosted websites. </p>
<p>Under the new provision, <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115a.html">section 115A</a>, copyright owners must show that the foreign-hosted website has the primary purpose of facilitating copyright infringement.</p>
<p>If a court order is granted, the ISP must take reasonable steps to disable access to the online location. The Federal Court has further powers make orders about the technical means by which the ISP must disable access.</p>
<p>These laws are becoming more common around the world, as major copyright owners try to find legal solutions to copyright infringement. </p>
<p>An important concern about the Australian law is that it is potentially very broad in scope. Section 115A empowers the Federal Court to require an ISP to block access to a foreign website whose “primary purpose” is to “facilitate” copyright infringement. But these words are not defined in the Act or in existing case law. </p>
<p>This uncertainty creates a risk that section 115A may be applied sweepingly, with potentially serious consequences for internet users. </p>
<p>One of the wins for consumers in today’s decision is that the Court has signalled that it will keep a close watch on future applications to extend these orders.</p>
<h2>Requiring ISPs to be copyright police</h2>
<p>Australian ISPs have been under a lot of pressure over the past few years to help copyright owners police their rights. </p>
<p>In the <a href="https://theconversation.com/iinets-hollywood-ending-what-does-its-court-victory-mean-for-copyright-law-6577">iiNet trial</a>, the High Court found that iiNet had no obligation to terminate the internet access of subscribers suspected of using BitTorrent to download and share copyrighted files.</p>
<p>After iiNet, the failed “<a href="https://theconversation.com/explainer-australias-three-strikes-plan-to-curb-illegal-downloads-37967">three-strikes</a>” agreement would have seen ISPs <a href="https://theconversation.com/forced-negotiations-and-industry-codes-wont-stop-illegal-downloads-35330">pass on allegations of infringement</a> to their users. But in the end, nobody could agree about who would pay for the scheme.</p>
<p>iiNet was again before the courts last year in <a href="https://theconversation.com/the-dallas-buyers-club-case-is-over-and-the-precedent-is-good-news-for-all-australians-54612">the Dallas Buyers Club case</a>, in which it successfully fought off “<a href="https://theconversation.com/what-now-after-the-dallas-buyers-club-pirate-claim-is-rejected-as-surreal-46133">surreal</a>” demands to hand over the contact details of its subscribers who were alleged to have downloaded the film over BitTorrent.</p>
<p>Now that iiNet has been <a href="http://www.itnews.com.au/news/tpgs-iinet-takeover-is-bittersweet-for-michael-malone-408176">bought by TPG</a>, there are fewer Australian ISPs with the money and political will to stand up for their users’ interests. The ISPs in this case, as with the three strikes agreement, seemed mostly concerned about who should bear the costs of the blocking scheme. </p>
<p>Because this is a case between large copyright owners and ISPs, the interests of consumers have not been well represented. </p>
<h2>Will this stop illegal downloading?</h2>
<p>This ruling will likely have limited impact on copyright infringement in Australia. </p>
<p>Consumer research shows that illegal downloading occurs because consumers <a href="https://eprints.qut.edu.au/75933/">lack cheap, easy, accessible channels</a> to access content legitimately.</p>
<p>The most recent example is the release of <a href="https://theconversation.com/amazons-new-grand-tour-series-could-be-the-next-illegal-download-victim-68141">The Grand Tour series</a> exclusively on Amazon’s pay-to-view service.</p>
<p>The program was illegally downloaded en masse beating even HBO’s Game of Thrones to become the most pirated show, <a href="http://www.dailymail.co.uk/tvshowbiz/article-4021280/Grand-Theft-Auto-Clarkson-s-TV-comeback-illegally-downloaded-history-viewers-pirating-episode-7-9million-times.html">reports the Daily Mail</a>. Consumers blame rights-holders for failing to meet market demand, and this encourages a social norm that infringing copyright, while illegal, is not morally wrong. </p>
<p>Some of our preliminary research indicates that exclusive licensing strategies (like Kanye West’s initial release of Life of Pablo <a href="https://techcrunch.com/2016/02/16/kanye-west-says-his-new-album-wont-be-on-itunes-or-apple-music/">only on Tidal</a>) are also likely to increase the <a href="https://digitalsocialcontract.net/do-exclusive-releases-drive-increases-in-copyright-infringement-f0ebc21bdf57#.rynbmbg2v">willingness of consumers to infringe copyright</a>.</p>
<p>The problem is that constraining access to illegal content through site-blocking does nothing to address the core motivations for infringement. </p>
<p>Most Australians want to do the right thing – and generally, they are willing to pay for the content they want. This is evident from the large numbers of <a href="https://www.choice.com.au/electronics-and-technology/internet/internet-privacy-and-safety/articles/bypass-geo-blocking">Australians who circumvent geo-blocking</a> in order to access the US versions of paid services such as Netflix and iTunes. </p>
<p>But without legitimate means of access, consumers feel they have no choice but to download the content illegally. </p>
<h2>What is the solution?</h2>
<p>Site-blocking is not the solution to illegal downloading. In the 17 years since Napster, one of the first file-sharing services, punitive legal responses are yet to be proven effective at reducing rates of infringement.</p>
<p>This experience suggests that <a href="https://theconversation.com/new-copyright-laws-are-not-the-answer-to-illegal-downloads-9007">stricter copyright laws</a> are not the most effective way to address copyright infringement.</p>
<p>Instead of investing resources into legal proceedings, we suggest that rights-holders should invest in innovative platforms that provide consumers with <a href="https://eprints.qut.edu.au/58818/">greater access to content in a timely manner at a fair price</a>.</p><img src="https://counter.theconversation.com/content/70473/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kylie Pappalardo leads research projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance (ADA). </span></em></p><p class="fine-print"><em><span>Nicolas Suzor is the recipient of an Australian Research Council DECRA Fellowship (project number DE160101542) and receives other project funding from the ARC. He also leads projects funded by industry groups, including the Australian Communications Consumer Action Network (ACCAN) and the Australian Digital Alliance. Nic is also the Legal Lead of the Creative Commons Australia project and the deputy chair of Digital Rights Watch, an Australian non-profit organisation whose mission is to ensure that Australian citizens are equipped, empowered and enabled to uphold their digital rights.</span></em></p><p class="fine-print"><em><span>Paula Dootson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A court has ruled that internet service providers in Australia should block access to some illegal file-sharing websites. But is there a better way to beat the priates?Paula Dootson, Senior Research Fellow; PwC Chair in Digital Economy, Queensland University of TechnologyKylie Pappalardo, Lecturer, School of Law, Queensland University of TechnologyNicolas Suzor, Associate professor, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/524422015-12-17T00:52:29Z2015-12-17T00:52:29ZCourt dismisses the Dallas Buyers Club latest copyright claim as ‘not Ben-Hur’<p>The Dallas Buyers Club LLC v iiNet case appears to have come to an interesting junction yesterday when Justice Nye Perram <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca1437">moved</a> to dismiss the case “in its entirety”.</p>
<p>Justice Perram had already <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0838">said in August</a> that DBC’s contention was “<a href="https://theconversation.com/what-now-after-the-dallas-buyers-club-pirate-claim-is-rejected-as-surreal-46133">surreal</a>”. This week he added:</p>
<blockquote>
<p>[…] it needs to be kept in mind that what is before the Court is a preliminary discovery application, not Ben-Hur.</p>
</blockquote>
<p><a href="http://www.imdb.com/title/tt0790636/">Dallas Buyers Club</a>, staring Matthew McConaughey, Jared Leto and Jennifer Garner, made A$2,761,258 at the Australian box office and was <a href="http://www.boxofficemojo.com/intl/australia/yearly/?yr=2014&p=.htm">ranked 75th</a> overall for 2014. But the maker, <a href="http://www.voltagepictures.com/details.aspx?ProjectId=131e77c6-d02a-e211-a8d1-d4ae527c3b65">Voltage Pictures</a>, is arguing that many Australians watched the movie after illegally downloading it via the internet.</p>
<h2>Before the court</h2>
<p>This is a case many Australians became aware of in April of this year when the same judge <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0317">ruled in favour</a> for DBC to gain “access to the <a href="http://www.news.com.au/technology/online/piracy/dallas-buyers-club-iinet-case-thrown-out-in-landmark-ruling-on-piracy-in-australia/news-story/d7676ba6308168c788e96be50ace734b">private details</a> of the 4,726 iiNet account holders”. Each had allegedly had their IP address registered for the downloading and/or sharing of the Dallas Buyer Club film. </p>
<p>Justice Perram said he didn’t want DBC LLC to use the “<a href="http://www.smh.com.au/business/dallas-buyers-club-loses-second-bid-to-identify-iinet-pirates-20151216-glowvd.html">speculative invoice</a>” approach used in other countries, where the studio sends a letter demanding a large sum to the downloader in the hope they will pay up rather than contest the figure. To prevent this a bond of A$600,000 was set. But it was still unclear how much DBC LLC intended to make the <a href="https://theconversation.com/how-much-will-australias-dallas-buyers-club-pirates-have-to-pay-40302">alleged pirates pay</a>. </p>
<p>In September DBC LLC asked to only gain access to 472 names, 10% of the original request, in exchange of paying only 10% of the original bond.</p>
<p>DBC LLC intended to gain damages for the <a href="http://www.gizmodo.com.au/2015/12/federal-court-throws-out-dallas-buyers-club-piracy-case/">following</a>:</p>
<ul>
<li>The cost of a single copy of the film had it been authentically downloaded</li>
<li>a claim for an amount based on each person who had accessed the uploaded film</li>
<li>a claim for punitive damages depending on how many copies of non-DBC copyrighted works had been downloaded by each infringer</li>
<li>a claim for damages relating to the costs of obtaining to user’s details.</li>
</ul>
<p>The latest claim by DBC LLC said it would only ask for the cost of an individual license fee in addition to its court costs. Each person would also receive a claim for the same amount, rather than the previous approach that the amount would be reflective of the individuals income.</p>
<p>But yesterday Perram made it very clear he was not content with the progress by DBC LLC and <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca1437">said</a> “some finality must now be brought to these proceedings”. He added:</p>
<blockquote>
<p>What I will do is make a self-executing order which will terminate the proceedings on Thursday 11 February 2016 at noon, unless DBC takes some step before then.</p>
</blockquote>
<p>This could result in the entire case ending with no resolution other than an expensive exercise for DBC LLC.</p>
<h2>Final act</h2>
<p>But does this case really matter and has it had any real impact?</p>
<p>Since the proceedings commenced in April, the media landscape, government policy and piracy levels in Australia have changed.</p>
<p>While Australians have been seen as the <a href="https://theconversation.com/from-convicts-to-pirates-australias-dubious-legacy-of-illegal-downloading-39912">leaders in piracy</a>, a more recent report by the Intellectual Property Awareness Foundation (IPAF) has shown a <a href="https://theconversation.com/why-the-drop-in-illegal-movie-downloads-in-australia-49042">decline in piracy</a> by Australians. Although the DBC case was noted as a contributor in the decline in piracy.</p>
<p>This year there have also been changes made to copyright policy by the Australian government. The <a href="https://theconversation.com/there-are-better-ways-to-combat-piracy-than-blocking-websites-43701">Copyright Amendment (Online Infringement) Bill 2015</a>, while arguably the wrong approach, gives the film studios an alternative to a lengthy drawn out case like that of DBC LLC. The approach is intended to block access to the websites sharing the illegal content, rather than the individuals downloading the content.</p>
<p>But it could be that both the DBC case and the copyright policy have come too late for most Australians. As many have already changed their approach to illegal downloading. </p>
<p>This year the biggest change has come with the introduction of video on demand services (VoD). The uptake of such services, in particular Netflix, has been much greater than had been expected. A recent <a href="http://www.acma.gov.au/%7E/media/Research%20and%20Analysis/Report/pdf/ACMA%20Communications%20report%202014-15%20pdf.pdf">report</a> by Australian Communications and Media Authority (ACMA) revealed that “53 percent of <a href="http://www.zdnet.com/article/netflix-australia-uptake-rapid-acma/">Australians used online video services</a> in the six months to June 2015”.</p>
<p>The uptake of VoD services has contributed to a <a href="https://theconversation.com/tv-shifts-from-hero-to-zero-but-even-netflix-cant-kill-pirating-45087">decrease in piracy</a> due to Australians now having access to media content at a lower price point, previously not available. Access was one of the major arguments put forward previously by Australians for their pirating habits.</p>
<p>If the DBC case is to conclude with no real outcome, what message does this send to those Australians still illegally downloading? What will the approach of the copyright holders be in the future to tackle the illegal downloading of their content?</p>
<p>We could see another test case by another studio, maybe this time with a higher ranking box office film. It would be interesting to see Disney’s reaction if the new Star Wars movie, The Force Awakens, was the focus of any illegal downloading. What would be their approach and how would it differ to DBC LLC?</p>
<p>The DBC case has clearly shown the complexities of such a case and the difficulties that any studio will face in Australia when making attempts to tackle piracy when chasing individuals.</p>
<p>Piracy in Australia and the DBC case, as the judge rightly says, are not as big as as Ben-Hur, and there are clearly already positive moves toward piracy’s decrease in Australia that have occurred this year. </p>
<p>But what will be the next move by DBC LLC now that they have already started the lengthy legal battle? We’ll have to wait until noon on February 11 to find out.</p><img src="https://counter.theconversation.com/content/52442/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marc C-Scott is a board member of C31 Melbourne (Community Television Station).</span></em></p>This could be the final act in the legal battle to recoup money from Australians who allegedly illegally downloaded the movie, Dallas Buyers Club.Marc C-Scott, Lecturer in Screen Media, Victoria UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/449822015-08-16T20:25:55Z2015-08-16T20:25:55ZAnxious addict or conscious cowboy? A new view on illegal downloading<figure><img src="https://images.theconversation.com/files/91273/original/image-20150810-11077-lr6nqp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">New research shows that not all illegal downloaders are created equally. </span> <span class="attribution"><span class="source">Lee Nachtigal</span></span></figcaption></figure><p>Beginning about 20 years ago, the internet placed almost the entirety of human creation in an unguarded window display and said, in effect, help yourself.</p>
<p>The public, presented with an amazing smorgasboard of content, plunged right in.</p>
<p>Ever since, the “content” industries have been running to catch up. They’ve invented rights management systems, experimented with pricing models, created new media windows and, when these haven’t worked, lobbied governments to sanction the free-for-all.</p>
<p>They’ve also pitched into the online infringers – people downloading but not paying for content – calling them pirates and their actions piracy, words freighted with centuries of social disapproval.</p>
<p>The pirates have returned fire, casting the content owners as cigar-chomping moguls, extorting the public.</p>
<p>It’s a very black-and-white dialogue, and not very helpful.</p>
<h2>Taking a step back</h2>
<p>So how should content creators relate to audiences in the digital age? Is it business as usual or has the relationship changed in fundamental ways?</p>
<p><a href="http://screenfutures.org.au">ScreenFutures</a>, a group of established and emerging screen producers (including the authors of this article), makes the case that digital platforms enable a new kind of conversation between creators and audiences, less freighted and more interactive.</p>
<p>In this new conversation, audiences are no longer “couch potatoes” but fans – interested, opinionated, and involved with creators in the act of constructing the social meaning of the work.</p>
<p>Through crowdfunding services such as <a href="http://www.pozible.com">Pozible</a> audiences can help bring the work to fruition and even help distribute it through services such as <a href="https://www.tugg.com">Tugg</a> (which allows people to “book” movies into their local cinema by popular demand).</p>
<p>For creators whose first contact with audiences used to be standing at the back of a cinema and watching the punters file out, this is heady stuff. </p>
<p>They find themselves engaging with audiences much earlier and more fully than was conceivable even 10 years ago. Communication is the key.</p>
<p>So how should they regard fans who don’t or won’t pay? </p>
<h2>ScreenFutures research findings</h2>
<p>Earlier this year the ScreenFutures group commissioned a study by independent media researcher SARA. </p>
<p>The study surveyed nearly 1700 people aged 16-75 years and found that about 33% watched movies and TV shows illegally downloaded from the internet.</p>
<p>The researchers then surveyed more than 900 “direct pirates”, people who acknowledged they had personally downloaded content illegally – probing their attitudes and reasons for downloading.</p>
<p>The results showed there were many different motivations. Among “direct pirates” the chief attraction was that “it’s free” (20%). Others said they didn’t want to wait for legal releases (18%), or the shows they wanted weren’t legally available in Australia (16%). </p>
<p>Still others said they pirated because it was quick and easy (16%), while 10% said legal shows were too expensive.</p>
<p>These findings correlate with <a href="https://www.communications.gov.au/departmental-news/new-online-copyright-infringement-research-released">research recently reported by the Department of Communications</a>, which measured illegal downloading in Australia and compared it with the UK (and yes, Australians are bigger downloaders). </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/91269/original/image-20150810-11091-zg5v1d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/91269/original/image-20150810-11091-zg5v1d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/91269/original/image-20150810-11091-zg5v1d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/91269/original/image-20150810-11091-zg5v1d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/91269/original/image-20150810-11091-zg5v1d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/91269/original/image-20150810-11091-zg5v1d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/91269/original/image-20150810-11091-zg5v1d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/91269/original/image-20150810-11091-zg5v1d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Luca Rossato</span></span>
</figcaption>
</figure>
<h2>The standout finding</h2>
<p>But the standout finding in the ScreenFutures study was that attitudes to illegal downloading among people who do it are very ambivalent.</p>
<p>Only one-in-five were unambiguously and defiantly in favour of piracy: the study dubbed these the Outraged Outlaws. </p>
<p>They were not worried about the legality or ethics of pirating, nor its effects on content creators. The only thing that might moderate their behaviour, they reported, was fines or other forms of punishment.</p>
<p>The next category was the Conscious Cowboys. These were people who acknowledged the questionable ethics and illegality of their behaviour but felt they were forced into it by the problems of access and pricing.</p>
<p>Their would modify their behaviour, they said, if the content they wanted were more readily available. They might also reconsider their behaviour in response to ads or educational campaigns.</p>
<p>Nearly a third (31%) of respondents fell into this category.</p>
<p>The third category was the Anxious Addicts, roughly a quarter (24%) of respondents. These people said they loved content and felt guilty about downloading it without paying. </p>
<p>They also worried about fines and acknowledged the arguments of anti-piracy campaigners – especially the damage to industry.</p>
<p>Finally, there were the Nervous Newcomers (19%). New to piracy, apprehensive, doing it mainly because other people were, they were very sensitive to the arguments and open to changing their behaviour.</p>
<p>In short, four out of five people who download illegally have doubts about it, feel nervous or guilty, or sense they may be doing the wrong thing.</p>
<h2>Implications</h2>
<p>There is a conflict between creators and audiences over access to works but it is not deep nor is it intractable.</p>
<p>Except for a noisy minority – less than 10% of the overall population – audiences know they should be paying for content and feel bad about it when they don’t.</p>
<p>The data shows that people who download without paying are often genuine fans who readily pay for content at other times.</p>
<p>These facts need to be reflected in the way that we think and talk about piracy. It may be a form of theft but it is also a backhanded form of customer feedback. </p>
<p>What audiences are telling creators through their actions is that content delivery is too slow, too expensive and too complicated. </p>
<p>The content industries need to work at fixing these problems. But equally they need to begin a conversation with audiences, explaining the problems and what they are doing about them.</p>
<p>They also need to understand the different audience segments and respond to them appropriately — not tar them all with the same black-and-white piracy brush.</p>
<p>Content creators in particular should take up this challenge. After all it’s their work, their livelihoods and their audiences. </p>
<p>The ScreenFutures research shows that people are listening.</p>
<p><em>ScreenFutures launched its report, Content You Love: reframing piracy for a sustainable creative industry, at the Australian Film Television & Radio School on August 13</em>.</p><img src="https://counter.theconversation.com/content/44982/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Annie Parnell is affiliated with AACTA, Screenfutures</span></em></p><p class="fine-print"><em><span>Chloe Rickard is affiliated with SPA.
Chloe is a founding member of ScreenFutures.</span></em></p><p class="fine-print"><em><span>Ester Harding is a founding member of ScreenFutures.</span></em></p><p class="fine-print"><em><span>Peter Drinkwater is CEO of Screen Audience Research Australia (SARA). He is a member of ScreenFutures.</span></em></p><p class="fine-print"><em><span>Bridget Callow-Wright and David Court do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Beginning about 20 years ago, the internet placed almost the entirety of human creation in an unguarded window display and said, in effect, help yourself. But that’s not to say all illegal downloaders are the same.David Court, Subject Leader, Screen Business, Australian Film, Television and Radio SchoolAnnie Parnell, Festival Manager & Film Producer, Australian Film, Television and Radio SchoolBridget Callow-Wright, Masters of Screen Business and Arts Student, Australian Film, Television and Radio SchoolChloe Rickard, Head of Production @ Jungleboys, Australian Film, Television and Radio SchoolEster Harding, Producer, Australian Film, Television and Radio SchoolPeter Drinkwater, CEO of Cowlick Entertainment Group, Film Grit and marketing research agencies Screen Audience Research Australia (SARA) and House of Brand, Australian Film, Television and Radio SchoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/461332015-08-14T05:41:47Z2015-08-14T05:41:47ZWhat now after the Dallas Buyers Club pirate claim is rejected as ‘surreal’?<figure><img src="https://images.theconversation.com/files/91861/original/image-20150814-11472-1u5v4k9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A pause, not a halt in legal attempts to claim money from people who illegally downloaded the movie Dallas Buyers Club, which starred Jared Leto (left) and Matthew McConaughey (right).</span> <span class="attribution"><a class="source" href="http://www.voltagepictures.com/details.aspx?ProjectId=131e77c6-d02a-e211-a8d1-d4ae527c3b65">Voltage Pictures</a></span></figcaption></figure><p>The makers of <a href="http://www.imdb.com/title/tt0790636/">Dallas Buyers Club</a> have been dealt a blow in their attempt to extract payment from people alleged to have downloaded illegal copies of the movie.</p>
<p>Voltage Pictures, which owns <a href="http://www.voltagepictures.com/details.aspx?ProjectId=131e77c6-d02a-e211-a8d1-d4ae527c3b65">Dallas Buyers Club</a>, has been <a href="https://theconversation.com/copyright-trumps-privacy-in-dallas-buyers-club-ruling-39801">trying to identify</a> over 4,700 iiNet subscribers who it alleges downloaded illicit copies of the movie. Earlier this year, the <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0317">Federal Court agreed</a> that iiNet should hand over subscriber details, but warned that any letter sent to account holders must first be approved by the court to protect consumers from abuse of the legal system.</p>
<p>In a win for consumer protection, the <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0838">Federal Court has now rejected</a> Voltage’s draft letters, criticising Voltage’s attempts to avoid explaining what fee it would demand.</p>
<p>Voltage had told the Court it would ask account holders for a settlement figure that included:</p>
<ul>
<li>the purchase price of a single legitimate copy of the film; plus</li>
<li>another fee for sharing the film to other BitTorrent users (an extremely large amount that would be a multiple of the total number of people to whom the subscriber may have transmitted small parts of the film); plus</li>
<li>a punishment for any other infringement of the copyright in any other, unrelated, content that subscribers <a href="http://www.zdnet.com/article/dallas-buyers-club-wants-to-know-torrenters-wage-and-download-history/">admit to have illicitly downloaded</a>; plus</li>
<li>an amount that would cover the cost of tracking down users associated with infringing downloads. </li>
</ul>
<p>The Court accepted that Voltage could ask for the costs of a single copy of the film and an appropriately proportioned fee to recover its legal costs so far. </p>
<p>But Justice Nye Perram rejected Voltage’s attempts to multiply these fees, potentially thousands of times, for every other user in the BitTorrent swarm. His Honour also rejected Voltage’s attempt to claim money for other infringements consumers may have admitted to.</p>
<p>Ultimately, Justice Perram refused to allow Voltage to send the letters in their current form. Voltage will still be allowed to send letters in the future, but only if it promises to limit the damages it is seeking to a more reasonable amount. It will have to back this promise up with a $600,000 bond payment to the court. </p>
<p>Consumers who have illicitly downloaded Dallas Buyers Club could still be liable for damages, but the figures requested are more likely to be closer to a hundred dollars than a few thousand. The exact amounts Voltage are prepared to settle for remain confidential for now.</p>
<h2>The court fights back against ‘speculative invoicing’</h2>
<p>The judge was keen to protect consumers from so-called “speculative invoicing”, where copyright owners send offers to settle claims for grossly disproportionate amounts. These demands can be extortionate: the letters typically threaten consumers with an expensive lawsuit if they don’t pay up.</p>
<p>Voltage Pictures has already been <a href="https://torrentfreak.com/hurt-locker-makers-return-to-sue-2514-bittorrent-users-120423/">heavily criticised internationally</a> for its speculative invoicing practices. It has filed massive copyright infringement suits in the US – including one naming <a href="https://torrentfreak.com/hurt-locker-makers-target-record-breaking-24583-bittorrent-users-110523/">nearly 25,000 defendants</a> for infringing copyright in its previous film, <a href="http://www.imdb.com/title/tt0887912/">The Hurt Locker</a>. </p>
<p>The goal of these lawsuits is not necessarily to actually prove infringement in court, but to convince defendants to settle out of court, usually for sums of more than US$2,000.</p>
<p>The United States’ system is open to this kind of copyright trolling, because under US law, copyright owners do not have to prove that they have actually suffered any loss from the infringement. They can ask the court to award any amount from US$750 up to US$150,000. </p>
<p>In Australia, unlike in the US, copyright owners are only entitled to an amount that is proportionate to the fee a consumer should have paid. Only in cases of flagrant copyright infringement are courts allowed to award higher damages to either punish consumers or deter others from infringing.</p>
<p>Speculative invoicing pressures consumers to settle for amounts that can be wildly disproportionate to the harm they have caused. It’s an unfair practice that abuses the legal system.</p>
<p>It also causes real problems for consumers who are wrongly accused and face the difficult choice between an expensive legal battle or simply paying up to make the problem go away.</p>
<h2>People, not criminals</h2>
<p>For years now, we have seen some copyright owners demand exorbitant sums of money for downloads of music or movie files that would have cost A$30 or less to legitimately purchase or hire. </p>
<p><a href="http://www.austlii.edu.au/au/cases/cth/FCA/2015/838.html">In this case</a>, Justice Perram refused to allow copyright owners to demand substantial sums of money based on completely imaginary scenarios where users would negotiate a licence to share the movie over BitTorrent. His Honour called this “so surreal as to not be taken seriously”, and said any claims for payment must be firmly grounded in reality.</p>
<p>In this decision, we see internet users being treated as actual people instead of assumed criminals. This is important. So long as users are painted as faceless pirates, it is easy to justify the excessive fees demanded by copyright plaintiffs. A more realistic vision of users as ordinary consumers means that copyright payments must be more realistic too.</p>
<h2>Looking ahead to reform</h2>
<p>This case sets an important precedent for the future. Australian ISPs are close to agreeing to a new <a href="http://delimiter.com.au/2015/07/22/internet-piracy-code-stalls-on-costs/">Industry Code</a> that will make it easier for copyright owners to track down alleged copyright infringers. </p>
<p>This decision means Australian courts will be careful to scrutinise future claims made by copyright owners seeking to identify internet users associated with infringing downloads. It means consumers are protected from extortionate demands made by copyright owners.</p>
<p>Hopefully, the decision will help copyright owners focus on finding ways to offer Australians with quick, convenient, and reasonably priced ways to pay for content, rather than seeking to make money through litigation.</p>
<p>Even Voltage admit that copyright infringement is less about consumers and more about outdated distribution models. In <a href="http://www.abc.net.au/triplej/hack/stories/s4212674.htm">an interview on Triple J</a> earlier this year, Michael Wickstrom, Vice President of royalties and music administration at Voltage Pictures, said:</p>
<blockquote>
<p>[…] the problem starts with the US distributors, because they purchase it for the US and everything else is driven around the US release date. I feel that if all the distributors were granted a day and date release, this would not be happening.</p>
<p>When we can have realistic release dates, I don’t think that the piracy numbers will be as much.</p>
</blockquote>
<p>Time and again, Australians have shown they are <a href="http://www.zdnet.com/article/people-who-pay-for-content-but-also-infringe-copyright-spend-more/">willing to pay</a> for reasonably priced and accessible content. Copyright owners who try to extort money from downloaders are going about this the wrong way.</p><img src="https://counter.theconversation.com/content/46133/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Federal Court has said no to an attempt to claim potentially thousands of dollars from people who illegally downloaded the movie Dallas Buyers Club. But the downloaders are not in the clear yet.Nicolas Suzor, Senior Lecturer, Faculty of Law, Queensland University of TechnologyKylie Pappalardo, Associate Lecturer in the School of Law, Queensland University of TechnologySuzannah Wood, Research Fellow, Intellectual Property and Innovation Law Research Program, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/401732015-04-15T05:20:42Z2015-04-15T05:20:42ZGame of Thrones pirates offer a useful lesson in TV money making<figure><img src="https://images.theconversation.com/files/77905/original/image-20150414-24627-m74wev.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Game of Thrones new season: There will be fireworks.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/epicfireworks/8716190923/in/photolist-dgMM9V-eBYBxw-eBVtok-ehdKTR-faFVBy-eaFkxE-eazGka-fFPJju-eY1vfz-oT1m4g-pCtMHt-fb6vus-eazGiK-eaFkDh-eazGpa-eazGoR-oRfbdd-oWeLBm-oWeKLd-maksBR-s5KpuH-rN9Tam-fkcnez-e3Mh6t-nd5BCr-eBYD1Y-eRLCyL-oD4HQ8-eb4JYB-bAgXPm-bAgYcC-bAgWsw-bAgZKQ-bPbEng-bPbDzx-bAgWVG-bAh4F3-bPbCJP-bAgYZq-bPbC2v-bAh2qj-bAh1A7-bPbAQx-bCZoEC-e3Qykt-e3Wd1w-e3Qz3n-bCZoof-bRU7yV-bCZosu">Epic Fireworks</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>HBO’s Game of Thrones simultaneously holds the record for being the most expensive (<a href="http://www.ibtimes.com/game-thrones-big-budgets-bring-huge-success-how-hbo-series-makes-money-high-cost-episode-1658966">grossing an average of $6m per episode</a>), most successful (<a href="http://www.hollywoodreporter.com/live-feed/game-thrones-rivals-walking-dead-709041">with 18m weekly viewers in the last season</a>) and yet also the most pirated TV series in history. Episodes from the first four seasons were downloaded more than 7m times worldwide <a href="http://www.cnbc.com/id/102579774">from Feb 5-April 6 2015, with a 45% increase from 2014</a>.</p>
<p>Last weekend, the first four episodes from the new (fifth) GoT season <a href="http://irdeto.com/news-and-events/illegal-downloads-of-game-of-thrones-episodes-increase-more-than-45-percent-year-over-year-in-the-final-weeks-before-season-5-premiere.html">appeared on BitTorrent sites</a>. In the 24 hours that followed, the pirated episodes were downloaded well over a million times worldwide, jeopardising HBO’s planning for an international online premiere that would have covered 170 countries worldwide.</p>
<p>British internet users have downloaded more pirate copies of the new season of GoT than viewers from anywhere else in the world. The UK led the piracy ranking with 9.8% of IP addresses sharing the content based in Britain, followed by the US with 9.1%, India 7.8%, Canada 5.4% and France 4.2% (as per <a href="https://torrentfreak.com/leaked-game-of-thrones-episodes-trigger-piracy-craze-150412/">Torrentfreak</a> data). Looking at this recent case, GoT can be seen not only as a gothic <a href="https://theconversation.com/game-theory-of-thrones-how-strategy-might-decide-who-rules-westeros-39963">metaphor of military and governance strategy</a>, but also a timely case to reflect on some compelling lessons for business models and firm strategy.</p>
<h2>Throne to the lions?</h2>
<p>First, HBO’s GoT represents a new successful way of combining high-quality entertainment products with successful pay-per-view business models. In common with <a href="https://theconversation.com/tvs-inevitable-cable-divorce-will-offer-consumers-a-confusing-abundance-of-video-riches-39099">Netflix and Hulu</a>, HBO offers a pay-per-view streaming service for movie-like, quality TV series without requiring a cable subscription to its users. </p>
<p>The series is globally distributed through exclusive deals with broadcasters such as Sky Atlantic in the UK. This is a relatively new and successful business model that is gaining traction in the entertainment industry but also bringing along some relevant threats. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/77903/original/image-20150414-24627-t5mcdr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/77903/original/image-20150414-24627-t5mcdr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/77903/original/image-20150414-24627-t5mcdr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=189&fit=crop&dpr=1 600w, https://images.theconversation.com/files/77903/original/image-20150414-24627-t5mcdr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=189&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/77903/original/image-20150414-24627-t5mcdr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=189&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/77903/original/image-20150414-24627-t5mcdr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=238&fit=crop&dpr=1 754w, https://images.theconversation.com/files/77903/original/image-20150414-24627-t5mcdr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=238&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/77903/original/image-20150414-24627-t5mcdr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=238&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Even better than the real thing?</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/paperpariah/17044739072/in/photolist-ouNYXM-odjcau-rYbK6A-njzwE4">Adam Foster</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>As a matter of fact, success in these and similar business models is often correlated with (mostly online) piracy. In other words it is sensible to expect that the best products (in this case TV series) will be also facing the greatest piracy threats. <a href="http://www.cnbc.com/id/102579774">Other examples among the most watched</a> and pirated series include The Walking Dead (5.7m downloads between Feb 5-April 6); Breaking Bad (3.8m); Vikings (3.4m); and House of Cards (2.7m).</p>
<h2>Working in Concert</h2>
<p>Despite consistent efforts, both technology and <a href="https://theconversation.com/brandis-leaked-anti-piracy-proposal-is-unrealistic-29709">legislation have to date fallen</a> short in securing intellectual property rights against the threat of piracy. As a result, companies in this market have no other solution than taking piracy into account as part of their business models and their related revenue streams – particularly when products are successful. This translates into finding alternative ways of monetisation in order to counterbalance the losses from piracy activities.</p>
<p>Solutions are neither easy to find nor implement, but past experiences in similar industries can provide some guidance. The <a href="https://theconversation.com/how-piracy-is-changing-the-music-industry-landscape-31919">music industry</a>, for example, started to seriously reflect on how to redefine its business model after the <a href="http://www.theguardian.com/music/2013/feb/24/napster-music-free-file-sharing">“Napster effect”</a> that hit the industry sales in late 1999, and continued in other forms despite countermeasures against the renowned piracy pioneer and some of its followers.</p>
<p>In recent years, the music industry fought mp3 piracy by revamping how artists engage with fans. We got grandiose concerts, long international tours laden with special effects and the creation of experiences which have relaunched interest – among purchasers and online pirates alike – in live shows. </p>
<p>In turn, this has allowed the organisers to increase the average price for the tickets without harming attendance. Other business models have included royalties from streaming services such as Spotify, which offer users an almost unlimited access to contents for a modest monthly fee.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/77907/original/image-20150414-24635-xa2ap1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/77907/original/image-20150414-24635-xa2ap1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/77907/original/image-20150414-24635-xa2ap1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/77907/original/image-20150414-24635-xa2ap1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/77907/original/image-20150414-24635-xa2ap1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/77907/original/image-20150414-24635-xa2ap1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/77907/original/image-20150414-24635-xa2ap1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/77907/original/image-20150414-24635-xa2ap1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U2 rewards paying punters with elaborate set design.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/fromthenorth/3781818037/in/photolist-6JxykR-6LbNKg-6LfMWA-6LbvaH-8e6ffX-6Rwnry-6RsiY2-6Rwnzo-6RwnCU-6Q7Axo-5vyjed-6RJniK-64A1Dg-63Taf8-6SGKXq-63SUq4-6SCGYg-6KiPMP-6K58St-bXD3X-8e9wVb-6LfVmA-6Q7nt1-6MrB9L-6LfLDq-6JUi71-8u2nVo-k4w8oH-63XhHQ-6RNpmb-75FUZF-6hTaf-71rwzb-6aUxuA-8ucVy1-6ATsKy-64A1qR-yZfMY-6Q35mz-cy3Mi-8W5XVY-63Xaj5-cy3Mx-9wqHSw-6Q3eti-Lxknd-9rqyf6-8JMTH6-3vd1zE-8JR2zy">FromTheNorth</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
</figcaption>
</figure>
<p>The TV and movie industries might be going in the same direction with exhibitions, events and other sources of monetization. For example GoT has recently launched a <a href="https://www.gotexhibit.com/">touring exhibition</a> where objects and costumes from the series were displayed for fans. Everyone is allowed in, but perhaps as a way to thank the supporters who did not indulge in the temptation of piracy, the entrance was kept free for visitors who could prove a subscription to Sky Atlantic. </p>
<p>Also, actors, authors and directors have been leaving their VIP areas and increasingly joining public appearances where interaction with the fans was promoted, as well as a series of commercial and marketing activities such as gadgets sales and discounted pay-per-view subscriptions. GoT has even got into the, presumably lucrative, <a href="https://www.hboshopeu.com/en/gb/shows/detailview/game-of-thrones-dragon-egg-winestoppers.html">market for mythically themed wine-stoppers</a>.</p>
<p>All in all, it seems that a viable response to counterbalance the threat of revenue losses due to piracy might be setting up portfolios of business models that combine different types of monetisation and bring the entertainment experience “offline” or “off-the-screen”. In the end, live experiences are still one of the few things that cannot be perfectly reduced to a file, compressed, and shared over the internet.</p><img src="https://counter.theconversation.com/content/40173/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paolo Aversa does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The new season of Game of Thrones signals entertainment companies are getting used to the idea that piracy comes with success. The trick is to loosen fans’ wallets a little down the line.Paolo Aversa, Lecturer in Strategy, City, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/398542015-04-09T07:19:12Z2015-04-09T07:19:12ZBitTorrent and the digital fingerprints we leave behind<figure><img src="https://images.theconversation.com/files/77448/original/image-20150409-15236-1jnqyar.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Finding those responsible for illegal downloading on BitTorrents may prove a challenge.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/nrkbeta/2305831708">Flickr/nrkbeta</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca0317">Dallas Buyers Club LLC v iiNet Limited</a> piracy court case raises many questions about what sort of trail people leave when they use technology to make illegal copies of movies and other copyrighted material.</p>
<p>The Federal Court of Australia <a href="http://www.abc.net.au/news/2015-04-07/dallas-buyers-club-isps-must-hand-over-customer-details/6375358">has ruled</a> that iiNet and a number of other internet service providers (ISPs) are required to disclose details of 4,726 of their account holders alleged to have been used to illegally download the movie over the internet via BitTorrent.</p>
<p>BitTorrent is a protocol (i.e. a detailed procedure) for transferring files – including, but not limited to, music and video files – between networked computers.</p>
<p>It was invented in the early 2000s by Bram Cohen, a programmer who went on to <a href="http://www.bittorrent.com/">found a company called BitTorrent Inc</a> that produces official BitTorrent software, which implements the protocol. Many other organisations have written compatible software. </p>
<p>To explain what BitTorrent does and how its users can be traced, it’s first worth examining more common examples of file transfer protocols. HyperText Transfer Protocol (<a href="http://www.pcmag.com/encyclopedia/term/44501/http">HTTP</a>) and its more secure cousin [HTTPS](<a href="http://www.pcmag.com/encyclopedia/term/44515/https">HTTPS</a> are two of many other file transfer protocols.</p>
<p>But there are some key differences between “client-server” protocols such as HTTP and HTTPS, and peer-to-peer protocols like BitTorrent. </p>
<h2>The client-server approach</h2>
<p>When a browser retrieves a web page or other resource from a web server, the page to retrieve is defined by a Uniform Resource Locator (<a href="http://www.pcmag.com/encyclopedia/term/53516/url">URL</a>). For example, one of my previous articles at the The Conversation has the following URL:</p>
<blockquote>
<p><a href="https://theconversation.com/how-the-heartbleed-bug-reveals-a-flaw-in-online-security-25536">https://theconversation.com/how-the-heartbleed-bug-reveals-a-flaw-in-online-security-25536</a></p>
</blockquote>
<p>In this URL, the “https” indicates the protocol and “theconversation.com” is the <em>host name</em>. The remaining part of the URL denotes a specific resource (file) on the host server. </p>
<p>When you access a URL, the web browser (i.e. the client) examines the <em>host name</em> (theconversation.com) and contacts a <em>name server</em> to find out the Internet Protocol (<a href="http://www.pcmag.com/encyclopedia/term/45349/ip-address">IP</a>) address of the server responsible for hosting “theconversation.com”.</p>
<p>It’s just like looking up a person by name in a phone directory to get their phone number.</p>
<p>Once the browser knows the IP address of the server, it contacts the server and asks for the content as indicated by the rest of the URL. The server retrieves the content and sends it, in its entirety, to the client’s IP address.</p>
<p>It’s worth noting that the client also has an IP address, but that only has to remain stable for a relatively short period of time, and doesn’t have to appear in any directory.</p>
<p>Most home ISPs only provide IP addresses to their customers on a temporary basis. Furthermore, that “visible” IP address is shared between all the devices connected to a home network. This might include a couple of PCs, a few tablets and smartphones or even internet-connected appliances, possibly owned by different people.</p>
<p>Client-server file transfer protocols work well for many purposes. Unfortunately, media files – particularly high-definition video for movies – can be very large. A high-quality full length movie runs to hundreds of megabytes of data that needs to be transferred to the client. Multiple simultaneous requests for them will overwhelm most standard internet servers.</p>
<p>Companies such as Netflix and YouTube therefore need large “server farms” with extremely fast and expensive network connections to meet peak demand. </p>
<h2>Sharing the load</h2>
<p>But there is an alternative approach. We don’t need to ask the <em>original</em> server for the file – any intact copy will do. All we need is a mechanism for finding out which computers have a copy of the file we want and are willing to share it, at this particular moment, and what their IP addresses are so we can contact them and ask for a copy.</p>
<p>And that’s precisely what early peer-to-peer file sharing mechanisms such as Napster and Gnutella did. Rather than one server providing the files, Napster and Gnutella had central servers that kept track of the IP addresses of computers (i.e. peers) currently offering particular files on a minute-by-minute basis, and a mechanism for requesting a file from another peer.</p>
<p>BitTorrent has an additional refinement. When your software makes a BitTorrent request, you get a list of the IP addresses of a <em>swarm</em> of peers who either have a complete copy of the file (“seeders”, in BitTorrent’s terminology ), or are in the process of retrieving the file (non-seeder peers, or “leechers”).</p>
<p>The software then requests “chunks” of the file from both seeders and leechers. Other leechers can request the parts you do have even before you have a complete copy.</p>
<p>Because of this cooperation, a very large number of computers can simultaneously get copies of very large files, without putting undue load on any one computer or network link.</p>
<h2>Legal and not-so legal sharing of files</h2>
<p>This has a number of very useful non-controversial applications. For instance, Facebook <a href="http://torrentfreak.com/facebook-uses-bittorrent-and-they-love-it-100625/">uses the BitTorrent protocol</a> to transfer software updates to the thousands of servers it uses. </p>
<p>But it’s undeniable that BitTorrent is also very useful for those who want to share copyrighted material. The only permanent infrastructure required is a server that has links to “torrents” – the originating seed which maintains a list of the computers in a swarm.</p>
<p>Not only is this not particularly costly, it maintains a level of indirection to the possibly copyright-infringing files being shared.</p>
<p>This has not stopped authorities – with the strong encouragement of the movie, television and music industries – using the law to attempt to shut down torrent directories for copyright-infringing material such as the Swedish-based <a href="https://thepiratebay.se/">The Pirate Bay</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/77477/original/image-20150409-15236-a641u3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/77477/original/image-20150409-15236-a641u3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/77477/original/image-20150409-15236-a641u3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/77477/original/image-20150409-15236-a641u3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/77477/original/image-20150409-15236-a641u3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/77477/original/image-20150409-15236-a641u3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/77477/original/image-20150409-15236-a641u3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/77477/original/image-20150409-15236-a641u3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Pirate Bay survives despite attempts to close it down.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/gallery-762415p1.html?cr=00&pl=edit-00">Shutterstock/Gil C</a></span>
</figcaption>
</figure>
<p>It’s worth noting that BitTorrent Inc itself is not associated with The Pirate Bay or any other copyright-infringing torrent directory. It is not a party in the present lawsuit about the alleged use of BitTorrent technology for copyright infringement.</p>
<p>Despite periodic shutdowns and <a href="http://www.abc.net.au/news/2014-11-05/pirate-bay-co-founder-arrested-in-thailand/5866910">arrest of The Pirate Bay’s creators</a>, it and other torrent directories remain available.</p>
<p>Representatives of copyright holders have resorted to another approach: <a href="http://www.wired.com/2011/05/biggest-bittorrent-case/">suing BitTorrent users</a> who have shared copyright-infringing files. To do so they must identify those users, both to contact them and to provide sufficient certainty that they will be held legally liable.</p>
<h2>IP addresses revealed</h2>
<p>Identifying the IP addresses of the members of a BitTorrent swarm is extremely simple. When a new client connects to the swarm, the IP addresses of the members of the swarm are transferred to the client, and existing clients are updated as new clients enter or leave.</p>
<p>Therefore, if an organisation wishes to identify those participating in trading a particular infringing file, they merely need to write a modified BitTorrent client that connects to the relevant swarm and records the list of participants. </p>
<p>University of Birmingham researchers have <a href="http://www.cs.bham.ac.uk/%7Etpc/Papers/P2PSecComm2012.pdf">reported</a> on the extent of such monitoring, which indicated that at the time of their study in 2012, participants in high-profile torrent swarms would be logged within three hours.</p>
<p>In the current court case, the recording of IP addresses was performed by a product called Maverik Monitor, written by the German firm <a href="http://www.maverickeye.de/">Maverickeye</a>. The court <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2015/317.html">decision</a> makes amply clear that Maverik uses the general approach outlined above. The judge was satisfied:</p>
<blockquote>
<p>[…] that there is a real possibility that the IP addresses identified by Maverik Monitor were being utilised by end-users who were breaching copyright in the film by making it available for sharing on-line using BitTorrent participating in a torrent swarm […]</p>
</blockquote>
<p>The judge therefore decided that this was sufficient reason to permit “discovery” and ordered that several Australian ISPs turn over their records.</p>
<h2>Proving copyright infringement</h2>
<p>The fact that the judge accepted the possibility that the IP addresses might be being used for infringing copyright, however, does not necessarily mean that the ISP account holders identified will automatically be held liable for copyright infringement.</p>
<p>The judge authorised handover of IP records for three purposes:</p>
<ul>
<li>seeking to identify end-users using BitTorrent to download the movie</li>
<li>suing end-users for infringement</li>
<li>negotiating with end-users regarding their liability for infringement.</li>
</ul>
<p>But identifying the end-user responsible for BitTorrent use to a sufficient degree of certainty may prove challenging in many cases, to an extent not clearly articulated in the judge’s decision.</p>
<p>For instance, home Wi-Fi networks are often left “open” (not requiring a password to access the network), allowing any device within range to use the network, including for BitTorrent. That range can often extend considerably beyond the boundaries of a person’s property.</p>
<p>It’s clearly going to be a challenge to identify all the actual people responsible for accessing illegal copies of the Dallas Buyers Club.</p>
<h2>Evading the BitTorrent monitors</h2>
<p>There are a number of technical measures that determined pirates can use to avoid BitTorrent IP monitoring, aside from taking advantage of open Wi-Fi networks.</p>
<p>Virtual Private Networks (VPNs) are one such measure. They provide an encrypted “tunnel” between an Australian computer and a proxy in a country with a less conducive legal framework for copyright infringement lawsuits.</p>
<p>Many VPN providers take payment by near-untraceable means such as pre-paid credit cards, or <a href="https://theconversation.com/au/topics/bitcoin">Bitcoin</a>, and claim not to keep logs tying the visible IP address from their systems to the Australian IP address at the other end of the tunnel. </p>
<p>Like BitTorrent itself, VPN technology has many legitimate uses, not least in providing secure remote access to corporate and governmental networks for employees. As such, banning or restricting the technology would be costly and impractical.</p><img src="https://counter.theconversation.com/content/39854/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Merkel has previously received funding from the Australian Research Council.</span></em></p>How easy is it to find those responsible for movie piracy using BitTorrent technology, as in the Dallas Buyers Club case. Not as easy as you might think.Robert Merkel, Lecturer in Software Engineering, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/340522014-11-20T06:04:56Z2014-11-20T06:04:56ZStreaming may suffocate the music industry – or save it<figure><img src="https://images.theconversation.com/files/65010/original/image-20141119-31623-11mimv3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Everyone's listening, but few are buying.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/karljonsson/488412425/">karljonsson</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Taylor Swift’s announcement that she was removing her music from the Spotify music service started a debate about the future of music. Swift argued that artists were not receiving appropriate compensation and that a pick-and-choose approach to consuming music undermined value of music as art. Spotify, and similar music services, had been seen as the way of reconciling the interests of musicians, record labels and consumers in the face of rampant illegal downloading. </p>
<p>For decades the music industry has warned that illegal copying of music threatens the the industry’s future, or even the existence of music itself. Broadband internet led to a worldwide blossoming of countless perfect digital copies. Copyright infringement, which the industry likes to call piracy, has soared – and profits have fallen. The music industry attempted to crush piracy using a combination of <a href="http://techliberation.com/2007/01/17/swat-teams-enforcing-copyright/">strong-arm legal tactics</a> and technological fixes including <a href="http://www.cnet.com/uk/news/riaa-drm-not-dead-and-likely-will-make-comeback/">copy-protection and digital rights management</a> on CDs and digital files like MP3s. Both have failed, and increasingly users downloading content perceive piracy as a victimless crime.</p>
<h2>From illegal to legal downloads</h2>
<p>One route seen as possible salvation is that of legal download services run by companies such as Apple, Spotify, or Amazon. Apple announced in 2009 that it had sold more than <a href="http://money.cnn.com/2009/01/06/technology/macworld/?postversion=2009010614">six billion song downloads</a>; by the following year it had reached <a href="https://www.apple.com/uk/pr/library/2010/02/25iTunes-Store-Tops-10-Billion-Songs-Sold.html">ten billion</a>. In fact paid downloads now represent <a href="http://www.bbc.co.uk/news/entertainment-arts-19270362">about 40% of music industry revenues</a>, but it has not reversed a long-term decline in total revenue. Instead downloads have cannibalised CD sales, now down to about 28% of total revenue. </p>
<p>But in 2013 something quite unexpected happened: revenues from downloads fell. And far from being a blip results for 2014 so far reveal an <a href="http://www.billboard.com/biz/articles/news/retail/6281506/soundscans-third-quarter-numbers-in-one-word-bleak">accelerating decline</a>, with downloads falling a further 13% from last year.</p>
<p>So what’s happened? An obvious answer might be that piracy has become more commonplace. But in fact data from several European countries suggests that music <a href="http://www.forbes.com/sites/michelecatalano/2013/03/25/music-piracy-major-studies-conflicted-over-recording-industry-impact/">piracy is declining</a>. </p>
<p>The British Phonographic Institute (BPI) representing the interests of the UK music industry has long claimed that only one in ten music downloads were legal. However the number of legal downloads has soared in recent years, the most recent estimate is that <a href="http://www.bpi.co.uk/assets/files/BPI_Digital_Music_Nation_2013.PDF">345m tracks were illegally downloaded</a> in the first half of 2013, alongside 239m legal, paid-for downloads. The BPI and <a href="http://idea.heinz.cmu.edu/2013/03/07/megaupload/">academic studies</a> show that blocking access to piracy sites increases legal sales. It appears that many pirates are not hardened, habitual criminals, but rather avid music fans who are perfectly willing to access legal content provided it is easy to find, reliable, of reasonable quality and most of all, affordable.</p>
<h2>Music delivered, not owned</h2>
<p>The decline of downloads isn’t down to piracy, or that people have stopped consuming music – they’re just not choosing to own it. Instead customers listen by streaming music directly over the internet in much the same way as radio, but with a choice of millions of tracks and albums that can be paused, skipped or replayed. Streaming has increased by <a href="http://www.whathifi.com/news/best-music-streaming-services-2014-comparison-review">more than a third</a> in the UK over the past year, accounting for the same market share as CDs.</p>
<p>Streaming is dominated by <a href="http://www.spotify.com">Spotify</a>, whose 40m users played more than 4.5 billion hours of music in 2013 alone. While only a tiny fraction of music consumers are Spotify users, the company is already having a profound effect in its home country, Sweden where the company now sells more than 70% of all music. Spotify has also been credited with growing the domestic music market and for a healthy reduction in music piracy within Sweden – impressive, for a country that also gave birth to the <a href="http://www.theguardian.com/technology/pirate-bay">Piratebay</a>.</p>
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<img alt="" src="https://images.theconversation.com/files/65012/original/image-20141119-31597-kaj3i2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/65012/original/image-20141119-31597-kaj3i2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/65012/original/image-20141119-31597-kaj3i2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/65012/original/image-20141119-31597-kaj3i2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/65012/original/image-20141119-31597-kaj3i2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/65012/original/image-20141119-31597-kaj3i2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/65012/original/image-20141119-31597-kaj3i2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Spotify: the most successful, non-profitable streaming service.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/mirjoran/5442786760/">mirjoran</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<h2>The right price… for listeners</h2>
<p>Streaming’s success stems not just from the convenience of access to an enormous music library at any time or place and on any device with an internet connection, it is also driven by price: three-quarters of Spotify’s customers pay nothing for their music. Free customers generate income from advertisements inserted between the tracks. A quarter of customers pay a flat monthly rate for advertising-free subscriptions and it is these heavy music consumers who make the service viable.</p>
<p>Record companies love streaming and credit it for their <a href="http://www.bpi.co.uk/media-centre/streaming-fuels-growth-for-uk-recorded-music-industry.aspx">return them to growth</a> after years of decline. Rights holders are paid on a per-play basis, for Spotify this is <a href="http://www.spotifyartists.com/spotify-explained/">between $0.006 and $0.0084 per track</a>, with the company returning a total of US$500 million to the music business in 2013 alone. More customers playing more songs means that the licensing fees <a href="http://www.ft.com/cms/s/0/2575960c-f9da-11e2-98e0-00144feabdc0.html">paid to record companies</a> continue to grow. Crucially, these fees must be paid whether or not a user is a paying subscriber.</p>
<p>But Spotify is not profitable. Despite impressive year-on-year growth, its costs - mainly licence fees - have continued to rise and the company has had to raise more funding. The same applies to US rival <a href="http://www.pandora.com">Pandora</a>. Both companies are desperate to convert free customers into lucrative subscribers. Spotify’s conversion rate of 25% implies there is a lot of room to grow, but <a href="http://techcrunch.com/2012/11/04/should-your-startup-go-freemium/">evidence from other “freemium” companies</a> suggests that only 1-10% of customers ever pay for products, and conversion rates are highly price sensitive.</p>
<p>It is entirely possible that the majority of streamers can never be persuaded to pay for their music. And if we don’t pay for our music, how can we invest in the next generation of artists?</p><img src="https://counter.theconversation.com/content/34052/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mike Richards does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Taylor Swift’s announcement that she was removing her music from the Spotify music service started a debate about the future of music. Swift argued that artists were not receiving appropriate compensation…Mike Richards, Senior Lecturer in Computing And Communications, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/279202014-06-16T01:47:44Z2014-06-16T01:47:44ZAussies are still paying over the odds and it’s time for ACCC action<figure><img src="https://images.theconversation.com/files/51002/original/pms4wbfq-1402622312.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tired of paying more for movie downloads?</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Yet another <a href="http://www.theaustralian.com.au/business/were-paying-39pc-more-for-downloads/story-e6frg8zx-1226951246207#">survey</a> has found Australians are paying more than their American and British counterparts for the same entertainment goods and services.</p>
<p>In its submission to the government’s <a href="http://competitionpolicyreview.gov.au/">Competition Policy Review</a>, consumer advocacy group <a href="http://www.choice.com.au/">Choice</a> compared the prices of popular entertainment content. They looked at the Game of Thrones series, films in Apple’s iTunes store and Playstation 4 video games. Choice found that for all of these products, Australians were paying substantially more than people in the UK or US.</p>
<p>This tallies with the findings of the <a href="http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=ic/itpricing/index.htm">Parliamentary IT Pricing Review</a> from last year. This report found that for the same content and software goods, Australians were sometimes paying a <a href="http://www.choice.com.au/consumer-action/consumer-protection/digital-rights-copyright/death-to-the-australia-tax.aspx">huge amount - 50% - more</a> than their counterparts in the US and the UK. This premium, known as the “Australia tax”, was not justified by higher costs of doing business here.</p>
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<img alt="" src="https://images.theconversation.com/files/51037/original/b5tw2g8t-1402636165.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/51037/original/b5tw2g8t-1402636165.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=696&fit=crop&dpr=1 600w, https://images.theconversation.com/files/51037/original/b5tw2g8t-1402636165.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=696&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/51037/original/b5tw2g8t-1402636165.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=696&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/51037/original/b5tw2g8t-1402636165.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=874&fit=crop&dpr=1 754w, https://images.theconversation.com/files/51037/original/b5tw2g8t-1402636165.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=874&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/51037/original/b5tw2g8t-1402636165.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=874&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p>I have <a href="https://theconversation.com/stop-the-pirates-behind-brandis-copyright-crusade-25819">argued elsewhere</a> that these higher prices for Australian consumers should be a priority for government action. Lowering prices to be more in line with what consumers are paying in similar countries could address the alleged “problem” that Australia has with pirating content, as well as ensuring films and TV series have similar release dates here to other parts of the world. </p>
<p>Ensuring Australians can enjoy legal and cheap imports of these products from other countries would also help the situation, as Choice suggests. The IT Pricing Review also recommended restrictions on this practice, known as parallel importation, should be lifted. However, the Trans Pacific Partnership agreement (if it is ever finalised) may stymie this as the US has been supporting a <a href="http://ipkitten.blogspot.com.au/2013/11/tpp-leak-what-will-tpp-do-to-trans.html">provision</a> that would allow big entertainment companies to prevent copies of their content made legally in another country from being imported into Australia without their permission.</p>
<p>These high prices and other restrictive conduct by the entertainment industry may also suggest a lack of competition in markets for digital content and software. If these companies are in some way coordinating with each other to ensure their prices are high, then this may constitute anti-competitive agreements between competitors, which is illegal. Alternatively, a company which has a monopoly or market power may be acting illegally if it misuses that power with anti-competitive effects. </p>
<p>There is also a prohibition on exclusive dealing in Australian competition law. Arguably, the <a href="http://www.smh.com.au/digital-life/computers/blog/gadgets-on-the-go/hbo-screws-australia-over-game-of-thrones-20140203-31w3c.html">Game of Thrones exclusive deal with Foxtel</a> might fall within this illegal behaviour. </p>
<p>Firms are prohibited from engaging in exclusive agreements if these have the purpose or effect of “substantially lessening competition” in the market at issue. There have been concerns about <a href="https://www.accc.gov.au/media-release/accc-to-consult-market-on-proposed-foxtel-undertaking">Foxtel’s market power over pay TV in the recent past</a>, and this exclusive deal may be another area the ACCC should investigate. However, <a href="http://www.crai.com/ecp/news/news_2012/CCMoviesPFs.htm">similar competition investigations</a> into UK pay TV provider Sky and its control over “premium movie content” came to nothing in the end, and resulted in no regulatory remedies.</p>
<p>Yet, there have been some inroads made into anti-competitive prices for digital content in other countries. In the last couple of years Apple and the big book publishers were <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2377589">considered by competition authorities</a> in the US and EU to have fixed the prices of e-books being sold to Apple device holders.
Earlier this year, a similar investigation into the major publishers was closed in Canada, with them making a deal with the Competition Bureau <a href="http://globalnews.ca/news/1135359/competition-deal-should-lower-e-book-prices/">“that is expected to lower prices for consumers by 20% or more”</a>. Australian consumers and their wallets could benefit from more proactive competition investigation and enforcement from the ACCC in this area, similar to what has been happening elsewhere. </p>
<p>The ACCC responds to complaints it receives from consumers and businesses about alleged anti-competitive practices, but it does not have the resources to pursue them all, and so must prioritise those which “harm the competitive process or result in widespread consumer detriment”. One of the ACCC’s current enforcement priorities is “emerging consumer issues in the online marketplace” and given the mounting evidence that Australians are paying over the odds for digital content and software, the ACCC may turn its attention to this issue. </p>
<p>If the ACCC finds illegal conduct via an investigation, it has a number of options for action. The companies involved can be persuaded to remedy their behaviour in the form of enforceable undertakings. If they are not cooperative, the ACCC can take them to court, which may result in large fines for companies or even prison sentences for particular individuals.</p><img src="https://counter.theconversation.com/content/27920/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Angela Daly does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Yet another survey has found Australians are paying more than their American and British counterparts for the same entertainment goods and services. In its submission to the government’s Competition Policy…Angela Daly, Research Fellow in Media and Communications Law, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/187032013-09-30T10:02:18Z2013-09-30T10:02:18ZMPs have missed the mark in attacking copyright reform<figure><img src="https://images.theconversation.com/files/32091/original/bhwkyrhn-1380291081.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Copyright is changing. Some are yet to catch on.</span> <span class="attribution"><span class="source">eddiedangerous</span></span></figcaption></figure><p>The House of Commons Culture, Media and Sport Committee set out some fairly strong <a href="http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf">views</a> last week about how its members think the UK should approach copyright reform. </p>
<p>I have an interest to declare in that I have been heavily involved in this debate since the autumn of 2010, when I was asked by the UK government to conduct an independent <a href="http://www.ipo.gov.uk/ipreview.htm">review</a> of intellectual property law, with a particular focus on economic growth.</p>
<p>On copyright, the committee makes four strong recommendations: that Google should be forced to block content which involves copyright infringement as robustly as it blocks child pornography; that the maximum penalty for copyright theft be increased to ten years in jail; that the government should get on with implementing the anti-piracy measures proposed in the 2010 Digital Economy Act; and that it should reverse its hitherto favourable stance on the measures proposed in my review.</p>
<p>My work, the committee says, is part of an agenda which “could cause irreversible damage to the creative sector on which the UK’s future prosperity will significantly depend.” In the CMS committee’s view: “the existing law works well.”</p>
<p>Here are some respects in which the existing law does not work well. The fact that it remains illegal for anyone to do what most of us routinely do – namely to copy one rights-protected file, such as music, from one device we own to another. No wonder people are so confused about the boundary between lawful and unlawful. The answer? A carefully drawn exception in copyright law to permit personal, non-commercial copying of files: a reform the committee opposes.</p>
<p>Reform is also needed in several other areas: to relieve archivists of the dilemma that it can be illegal for them to copy a work even for preservation and to prevent damaging restrictions on the ability of researchers to use techniques such as text and data mining; or to make copyright rules right for digital era schools and universities. Workable and detailed reforms are now being put forward by the government to address these issues.</p>
<p>The case I made in the review was that a successful copyright regime in a digital world needed to be shorn of palpable absurdity if the law is to be respected and enforceable in a way which commands broad public support. I also argue that rights holders need to do a better job in licensing and selling rights, especially for small, low-value transactions, through what I called a <a href="http://www.ipo.gov.uk/hargreaves-copyright-dce">Digital Copyright Exchange</a>.</p>
<p>This aspect of the project, at least, meets with the committee’s approval, but a successful exchange cannot do the job alone: if the law continues to be dressed as an ass, it will damage the exchange as well. Put together one-click licensing and laws that pass the common sense test and we will release a significant new level of energy in the collaborative, co-productive world of the creative economy.</p>
<p>In my view, the committee’s core misjudgement arises from the fact that it appears to be focused exclusively on the perspective of existing, mostly large, creative industry players and not at all upon emerging digital firms and entrepreneurs. Nor does it take account of consumers, who appear to have been left behind in this report.</p>
<p>A more balanced approach is necessary if we are to make the most of the UK’s creative economy. This term, “creative economy”, by the way, appears in the CMS Committee report’s title, but it is never defined and appears to be used interchangeably and randomly with the term “creative industries”.</p>
<p>In the recent <a href="http://www.nesta.org.uk/home1/assets/features/a_manifesto_for_the_creative_economy">Nesta Manifesto for the Creative Economy</a>, which I co-authored, we clear up this imprecision by defining the creative economy based on labour force data which enables us to count creative workers, inside and beyond the creative industries, and so to compute the value of their work and the size of the creative economy.</p>
<p>By these Nesta definitions, the UK creative economy employs 2.5 million people and accounts for something like 10 per cent of UK gross value added. Having nailed this down, we set out an agenda to ensure the creative economy prospers.</p>
<p>This includes a “schools digital pledge” to ensure that the curriculum brings together art, design, technology and computer science; a seven-point plan for creative clusters; and proposals to put creative economy research and development on a par with other business sectors. We discuss the role of the BBC and offer some thoughts about the complex issue of policing competition on the internet. We also say that a carefully undertaken reform of copyright, operating within the framework of exceptions permitted in European law and a prospective, unified EU digital market, will be an indispensable component of success.</p>
<p>I think this a much better programme for supporting the UK creative economy than the one put forward by the CMS Committee’s politicians. Why not read both and judge for yourself.</p><img src="https://counter.theconversation.com/content/18703/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ian Hargreaves
Does not directly own shares in any company.
Has done work on intellectual property issues for the following:
The UK Intellectual Property Office (payment for time devoted during the IP review)
Nesta: one day a week research fellowship from January 2012 to February 2013.
Has research funding from the AHRC and the EPSRC on themes involving the creative economy, but not specifically with regard to copyright.
Has written for the Lisbon Council, a Brussels think tank, on copyright issues and is a Senior Fellow at the Lisbon Council.
is a member (unpaid) of the Digital Wales Advisory Network.
is a member (unpaid) of the Alacrity Foundation board
is a member (unpaid) of the board of National Theatre Wales.
is a new member (paid) of the EU's Office for Harmonisation of Internal Markets Observatory - advisory board on IP enforcement.
</span></em></p>The House of Commons Culture, Media and Sport Committee set out some fairly strong views last week about how its members think the UK should approach copyright reform. I have an interest to declare in…Ian Hargreaves, Professor of Digital Economy, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/181672013-09-13T05:17:02Z2013-09-13T05:17:02ZOnline pirates may be willing to pay - if the price is right<figure><img src="https://images.theconversation.com/files/31261/original/rx8ry7jz-1379000917.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Illegal downloading has become a free-for-all.</span> <span class="attribution"><span class="source">Josh Russell</span></span></figcaption></figure><p>Data released by <a href="http://stakeholders.ofcom.org.uk/market-data-research/other/telecoms-research/high-volume-infringers/?utm_source=updates&utm_medium=email&utm_campaign=oci-high-volume">Ofcom</a> yesterday show that internet users who illegally download films, music or games actually spend more money on legal downloads than those who always play by the rules.</p>
<p>Online piracy is a major issue for business so information about the habits of those who pirate is always useful. When intellectual property can be rendered digitally and reproduced perfectly without cost, commercial viability is jeopardised. Reduced revenues would typically be expected to take their toll on levels of output, meaning that society ultimately suffers from a reduction in the amount of new music, film or video games available.</p>
<p>There is at least some evidence of this so-called “displacement” theory taking effect, with claims that a significant proportion of the 60% reduction in real revenues generated by the recorded music industry between <a href="http://www.ifpi.org/content/section_news/20130408.html">2000-2009</a> were a result of piracy. However, despite falling revenues, piracy may actually lead to a number of benefits to society – not least in terms of the consumption of “free” music, but also as a result of reduced uncertainty about product quality and the opportunity for users of peer-to-peer networks to interact with each other.</p>
<p>Ofcom’s research shows that prolific pirates spent around £26 on legal downloading over a three month period, while those who never accessed illegal content spent around £16. On the surface, this evidence would suggest that piracy acts more as a complement to paid legal consumption, but this would perhaps be an over-simplification. </p>
<p>Even if it is true that more active pirates also pay for more legal consumption, the key question to ask is: would that level of paid consumption have been higher were it not for the existence of piracy? Drilling down into the survey results, we also see that the most prolific users claim that they’ve “already spent enough” on content and use this as a reason to justify their behaviour. This implies that piracy is at least in part a substitute for paid consumption. </p>
<p><a href="http://linksource.ebsco.com/shib.68a3f303-7c63-4a45-a92e-7f4e6abf132b/linking.aspx?sid=google&auinit=J&aulast=Cox&atitle=Seeders,+leechers+and+social+norms:+Evidence+from+the+market+for+illicit+digital+downloading&id=doi:10.1016/j.infoecopol.2010.09.004&title=Information+Economics+and+Policy&volume=22&issue=4&date=2010&spage=299">My own research</a> has shown that even digital pirates tend to behave in a way that is largely consistent with economic expectations about behaviour and this is backed up by the findings of the Ofcom survey.</p>
<p>People generally consider their chance of facing any serious legal consequences to be low, which in turn leads to increased levels of participation. Only 25% of respondents to the Ofcom survey said they would stop downloading materials illegally if they thought they might be sued and 20% said they would stop if they received a letter from their internet service provider threatening to cut them off.</p>
<p>It is therefore likely that legal measures and punishments do not serve as a particularly strong disincentive to participation, which calls into question the likely effectiveness of the UK government’s plans to send warning letters to pirates via ISPs as part of the <a href="http://www.legislation.gov.uk/ukpga/2010/24/contents">Digital Economy Act</a>, currently planned to come into effect by 2015.</p>
<p>The evidence on the way people access legal and illegal online content presented by Ofcom today backs up my own research suggesting that more prolific movie downloaders can be willing to pay for subscription services that offer unlimited access to material for a fixed monthly fee. The rise in popularity of companies such as Spotify and Netflix are a clear indication of this.</p>
<p>Greater competition between companies like these and lower resulting subscription fees may end up alleviating many of the problems brought about by online piracy. After all, history has shown that the creative industries tend to (eventually) find ways to take commercial advantage of technological developments.</p><img src="https://counter.theconversation.com/content/18167/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joe Cox does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Data released by Ofcom yesterday show that internet users who illegally download films, music or games actually spend more money on legal downloads than those who always play by the rules. Online piracy…Joe Cox, Principal Lecturer, Economics and Finance, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/90072012-08-24T04:36:11Z2012-08-24T04:36:11ZNew copyright laws are not the answer to illegal downloads<figure><img src="https://images.theconversation.com/files/14542/original/q39nh9jz-1345637180.jpg?ixlib=rb-1.1.0&rect=101%2C70%2C4001%2C2637&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">News Ltd chief Kim Williams took aim at ISPs and the NBN over illegal downloads, but new copyright laws are not the answer.</span> <span class="attribution"><span class="source">AAP</span></span></figcaption></figure><p>Earlier this week, Kim Williams, CEO of News Limited, spoke at the <a href="http://www.theaustralian.com.au/media/digital/copyright-law-disastrously-outmoded/story-fna03wxu-1226454902835">Australian International Movie Convention</a> on the Gold Coast and called for new copyright laws to better protect digital property rights.</p>
<p>Back in February, my colleague and friend Bruce Arnold <a href="https://theconversation.com/ip-patents-copyright-you-5421">opined</a> a similar view, stating that in “the age of the internet and multinational business models, many of the existing laws are under strain, their suitability and ultimate purpose called into question”.</p>
<p>Williams complained the NBN would make illegal file-sharing and downloads worse and called upon the NBN to be included in any future code and be obligated to take reasonable steps to stop piracy. Additionally, he requested ISPs to take stronger action against unlawful activity on their networks.</p>
<p>But what can be done and are new laws really the solution? ISPs, as the focal point of the pipe which delivers content, certainly play a major role in many issues of online trust and safety. </p>
<p>In this instance we need to look at whether ISPs have either contributory or vicarious liability. This could be based on if an ISP knows or has reason to know of copyright infringement and induces, causes or materially contributes to the infringing conduct of another. But just as ISPs could do more to stop malicious software, so too they could contribute to and could assist in the reduction of copyright theft. Recent legal precedence is illuminating.</p>
<p>After three years of legal argument, the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html">Roadshow v iiNet case</a> ended with the High Court unanimously deciding iiNet never supported or encouraged unauthorised sharing or file downloading by its users. The Court held that an ISP “is not to be taken to have authorised primary infringement of a cinematograph film merely because it has provided facilities for making it available online to a user who is the primary infringer”.</p>
<p>Many content rights holders have <a href="http://www.commsalliance.com.au/__data/assets/pdf_file/0019/32293/Copyright-Industry-Scheme-Proposal-Final.pdf">lobbied</a> for strategies to address online copyright infringement, including the implementation of a graduated response scheme designed to compel ISPs to forward notices and apply sanctions against users the rights holders allege are engaging in copyright infringement, for example, via peer-to-peer file sharing. </p>
<p>The ability for a rights holder to be able to send a copyright infringement notice to a relevant ISP for forwarding on to their subscriber is a good idea.</p>
<p>But in the iiNet case, the High Court determined “[i]t was not unreasonable for iiNet to take the view that it need not act upon the incomplete allegations of primary infringements in the AFACT Notices without further investigation which it should not be required itself to undertake, at its peril of committing secondary infringement”.</p>
<p>The next biggest players after ISPs are search engines. Search engines trawl content on the web and reproduce text, images and sound recordings. Copyright law raises a number of challenging legal issues for search engines as they do not own content, but instead organise, rank and display vast amounts of material that is posted on, or to websites. Other copyright issues for search engines include caching of copyright material, the extent to which fair use applies, authorisation liability and the impact of safe harbour provisions.</p>
<p>But what about other industries? The recent <a href="http://www.dbcde.gov.au/digital_economy/independent_media_inquiry/">Finkelstein Report</a> discussed charging for online content and found highly-differentiated online content would normally command a scarcity premium.</p>
<p>“For such content, charging for access could work provided that the producer can retain control over the related property right. But it may not be an easy proposition given the current level of piracy and unauthorised use of content on the internet.” </p>
<p>Online media companies are also similar to search engines and generate revenue by selling advertising.</p>
<p>So what does the government think? Principle 8 of the <a href="http://www.dbcde.gov.au/__data/assets/pdf_file/0007/143836/Convergence-Review-Interim-Report-web.pdf">Australian Government Convergence Review Interim Report</a> states “Australians should have access to the broadest possible range of content across platforms, services and devices”. There is no mention though of copyright protection or the role of ISPs and search engines.</p>
<p>And the NBN - well, that will transform the way we live and operate in the online environment - but we can hardly blame it for copyright infringement. NBN Co are an important stakeholder, but do not hold the answer.</p>
<p>Clearly, there is a problem. Williams raises some valid concerns. We need industry to collaborate with government to assist content rights holders to be able to enforce their copyright and change the behaviour of those who engage in online copyright infringement.</p>
<p>New laws are not the answer. Rather, we need to look at education, technical mechanisms, licensing solutions and responsibility of ISPs and search engines to find a workable balance between the right to own and creative content and the ability of users (and intermediaries) to access and reuse such content.</p><img src="https://counter.theconversation.com/content/9007/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nigel Phair does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Earlier this week, Kim Williams, CEO of News Limited, spoke at the Australian International Movie Convention on the Gold Coast and called for new copyright laws to better protect digital property rights…Nigel Phair, Director, Centre for Internet Safety, University of CanberraLicensed as Creative Commons – attribution, no derivatives.