Fighting copyright pirates hand to hand

OPINION: Section 92a is back and the Government is again threatening to cut off copyright pirates' access to the internet, so why isn't the hawkish Recording Industry Association celebrating?

The original section 92a of the Copyright Act that sparked the "Blackout" protests earlier this year would have given the music and movie studios an automatic weapon with which to gun down pirates.

They could have sat back in their offices in Manhattan or Los Angeles and fired off thousands of computer-generated letters to Kiwi internet service providers requesting they suspend the accounts of the users of internet protocol addresses that they harvested from peer-to-peer file-sharing sites.

Internet providers would have had to comply, or risk getting themselves into fights on their customers' behalf, in which they stood to gain nothing and lose everything.

The Government was right to abandon the law change, which was the lazy product of a third term Labour administration.

It shamelessly trashed the key principles that it should be the Government that decides (at least roughly) what the law should mean, and a body with some sort of judicial authority that should weigh the evidence and apply it. Neither task should be delegated to unaccountable industry bodies, as Labour then wanted.

The replacement section 92a proposed by an Economic Development Ministry working group last week is an altogether different beast. It would allow rights-holders to still appear threatening, but only if copyright infringers didn't call their bluff. Rights-holders could get ISPs to send out large numbers of warnings and "cease and desist" letters on their behalf.

But in order to take action against pirates they would have to engage in hand-to-hand fighting, through mediation (presumably in the town of the pirate's choosing) or in front of the high-brow Copyright Tribunal. Neither provides a mechanism for enforcing intellectual property rights on a mass scale.

The tribunal could suspend people's internet accounts. But it could apply other sanctions such as fines, so could be expected to take into account user's individual circumstances, including whether disconnection might unfairly affect other innocent users of an internet account.

The suggestion, up for discussion, that tribunal decisions could be appealed to the High Court appears a sound one. Due process would be restored and the new section 92a mitigates against rights-holders pursuing trivial transgressions.

It is hard to argue that Commerce Minister Simon Power would be tipping the balance much too far in favour of rights-holders if he endorsed it.

But if the new section 92a's bark is worse than its bite, and the music and movie industries are unsuccessful getting more draconian laws passed overseas, what is the future for content creators?

Labour communications spokeswoman Clare Curran cites British research that indicates 70 per cent of young people feel no guilt downloading music for free as evidence of the need to educate schoolchildren about the evils of copyright infringement.

One difficulty is that in more cases than the music industry might care to imagine, those young people might have been right in believing they were committing a victimless crime. It is only when internet users would pay for the material they are pirating that the copyright owner loses out.

And who would want to be the teacher trying to persuade youngsters they were morally wanting for not forking out their $1.99 for Avril Lavigne's latest hit?

The music labels have another option to try to turn the tide; making their products substantially cheaper and easier to buy.

The idea of a levy on internet accounts that would be divvied up by rights holders, floated by Ms Curran, looks just too hard and would probably be deeply unpopular.

But it is difficult to see why many internet users would go to the trouble of participating in peer-to-peer file-sharing services if they could download a single direct from the rights-holder for, say, the cost of a regular text message, and without having to sign up and create an account.

In an era when there is so much free content to choose from, not just online, but on the radio and television, that is the kind of pricing that may be realistic.

Music labels' revenues might still decline, but perhaps at a slower rate, and would a little more "amateurisation" of the entertainment industries hurt so much anyway?

There may be a case for more action on copyright to protect the interests of rights-holders who are producing high-value educational or technical material. Not songs or Hollywood flicks, but stuff that actually makes civilisation's wheels go round and which should be proliferating thanks to the distribution opportunities afforded by the web.

The making of music and films is certainly not under threat. People will continue to try and entertain, whether or not their intellectual property is well protected and however talented or hopeless they may be, because it's damn good fun.

But where is the incentive to write a manual on how to repair concrete corrosion or to produce a video guide on converting sheep farms to dairy, when they can be so easily be scanned or copied and pirated online?

If there is to be a levy on internet accounts, perhaps it should be a small one to fund an equivalent of legal aid for such rights-holders, who will not be assisted by the new proposed section 92a.

Making value judgments about the merits of content and the degree of protection it should be afforded is thorny territory of course. But perhaps that should be considered when designing, or at least applying, an enforcement regime.

All up, it might be best to live with the new section 92a and let the commercial interests of the music and movie industries sink or swim. After all, it's just entertainment.

- © Fairfax NZ News