Monday, December 31, 2012

Obligatory Top-10 Tech Predictions for 2013

I did this last year, so rather than shatter any expectations of readers, I will be sharing my technical prescience once again. Of course, all of them came true last year 1, so here goes:

  1. Despite Google's best efforts, users still won't realise that Google Hangouts has a social network attached.
  2. Apple will lose its way, so will its users - thanks Apple maps.
  3. Windows 8 will fail to revive the glory days of Windows ME.
  4. More and more services will move into the cloud, mainly thanks to cloud based companies continuing to expand the definition of what cloud based services actually are.
  5. Malware writers will increasingly target web exploits to avoid the hassle of writing for multiple platforms. Software companies will just complain about having to write for multiple platforms. HTML5 will continue to be largely ignored.
  6. Facebook will continue to suck, users will continue to complain about it. Facebook will still have eleventy billion members.
  7. Tweets will become the number one source for mainstream news organisations. Mainstream news organisations will publish at least one "twitter is stupid" article per month for "balance".
  8. Android will continue to grow despite the sucky API and the need to develop for multiple platforms. Apple will continue to grow despite its command economy for apps.
  9. There will be enormous buzz in the tech community over a true Linux-based smartphone OS. Lots of buzz. It'll be so slashdottingly buzzworthy that no-one will notice that it hasn't been released nor does it have any support from any major hardware vendor.
  10. 2013 will be the year of the Linux desktop.

So there you have it 2013.

1 Disclaimer: This post and any prior "predictions" posts may contain harmful levels of hyperbole and exaggeration.

Monday, August 27, 2012

A simple sleight of hand - The morphing of Fair Work to WorkChoices

The spectre of WorkChoices was back from the dead today as the Liberal Party's  own Lazarus, John Howard, urged the party to resurrect the dead, buried and cremated policy. The current leader of the opposition, Tony Abbott, was quick to shut down any discussion (lest it lead to an actual policy position that may enable voters to see any Liberal policy longer than three word slogans). However, in his rush to shut down the discussion, he inadvertently gave a glimpse of the mechanism by which he intends to introduce a more radical workplace policy.
Abbot stated that:
"The Labor Government under the Fair Work Act has put in place individual flexibility agreements. I think these agreements need to be made more workable, but there's no going back to the past. We want the Fair Work Act to work better."
Individual flexibility arrangements (IFAs) are arrangements that can vary an employee's conditions under enterprise agreements (EAs)- s202 of the Fair Work Act 2009 -  or modern awards - s144(1). They are designed to allow employees to vary their workplace conditions to suit their circumstances (such as working hours) or for employers to offer a set of conditions to an employee to alter their working conditions to better match business requirements. However, unlike the old WorkChoices Australian Workplace Agreements (AWAs ), IFAs are limited to a specific set of workplace conditons, cannot be made a condition of employment and must leave an employee "better off overall". 

  IFAs vs AWAs
Subject MatterLimitedUnlimited (within a basic safety net)
Can be offered as a condition of employmentNoYes
Can be offered en masseNo (that's what EAs are for)Yes
TerminationUnilateralBy agreement
TestBetter off overallNo Disadvantage (initially no test)

As can be seen from the table there are only a few differences between IFAs and AWAs - most notably the subject matter and whether they can be offered as a condition of employment. The removal of these two conditions on IFAs would effectively re-introduce AWAs. A removal or erosion of the test for the agreements would effectively bring back the worst elements of the supposedly dead policy.

Abbott's admission that IFAs are the mechanism by which a future Liberal government would re-introduce "flexibility" should give us pause for thought. The re-introduction of AWAs would not require substantial changes to the Act and so when Abbott states that all changes will be within the Fair Work framework it is cold comfort that the Liberals' pet policy, WorkChoices, isn't ripe for resurrection.

Sunday, July 15, 2012

Labor and the Greens: History repeating?

The right wing of the Labor party has been heaping scorn on the Greens this week, spearheaded by Paul Howes and backed up by many of Labor's parliamentary members. Some commentators have suggested that this is a ploy to drag back wavering socially conservative blue-collar voters from the Liberals by distancing themselves from the Greens. This ploy is doomed to failure as this group of voters is much more likely to be convinced by the pandering to xenophobia that has been honed into a fine art by the Coalition than any Green bashing from Labor's right.

A far more likely outcome can be found in relatively recent State political history between Tasmanian Labor and the Tasmanian Greens. In fact, the parallels between Federal Labor's current policy tantrum at the Greens over asylum seekers and the breakup of the Tasmanian Labor-Green accord in 1992 are strikingly similar.

In 1992, the then Field government was governing Tasmania with the support of the Greens. It was always an uneasy alliance with major disagreements over school closures and forestry policy. However, the straw that finally broke the accord was Labor's "take it or leave it" approach to the Howard (edit: thanks Matthew) Keating government's Forests Industry Strategy, which the Greens had strongly opposed (in fact, the adoption of this policy went directly against the tenets of the accord).

The Labor party assumed that the Greens would merely roll over and accept it because the alternative was to bring down the unpopular Labor government and elect the less Green-friendly Liberals (who had already said that they wouldn't deal with the Greens). The assumption was that the Greens would be equally punished as the Labor party and end up politically much worse off. 

The Greens didn't blink and the election was called. The Liberals won the most seats but were still forced to govern in a minority (with supply being given by the Greens) [Edit: This isn't quite right - Please see Matthew's comment below for more explanation]. Ultimately, Labor's assumption that the Greens were merely an errant left faction that could be pushed around by the party ended up leaving the Labor party out of power but did not affect the Greens.

After their defeat, Labor was fixated on killing off the Greens who they saw as a major threat to their party base. They even conspired with the Liberals to reduce the size of parliament (and thus the quota needed to win a seat) to get rid of them - a policy which has had a devastating effect on the ability of successive Tasmanian governments to effectively govern the State as there are not enough parliamentarians to effectively manage the necessary portfolios. 

The reduction in size of the Tasmanian parliament did keep the Greens out of power for some time, but in the most recent election of the Tasmanian Labor government, the Greens hold the balance of power again.

The current machinations of the current Federal Government are eerily reminiscent of 1992:
  • The assumption that the Greens are merely an errant left-faction of the Labor party,
  • The assumption that they could take a "take it, or leave it approach" to the Greens in the parliament (the CPRS being a case-in-point),
  • The assumption that a parliamentary loss for Labor would be equally felt by the Greens.
These assumptions in Tasmania ended up damaging the Labor party far more than the Greens. The current Federal ALP would do well to look back at this history or, as they say, they'll be doomed to repeat it.

Sunday, June 24, 2012

Fish Curry with Spicy Vegetables


Fish Curry
400gr White Fish, cubed
1 Onion
1 Clove Garlic
1 Cm Chopped Fresh Ginger
1 Can Tomatoes
1 Tsp Ghee
1/2 Tsp Dried Chilli Flakes
1 Tsp Tamarind paste
125 ml Coconut Milk

Spice Mix
2 TBSP Ground Corriander
1 TBSP Ground Cumin
1 Tsp Black Pepper
1/2 Tsp Tumeric
1/2 Tsp Ground Chilli

Spicy Vegetables
1 Tsp Mustard Seeds
1 Tsp Cumin seeds
1 Tsp Ghee
1 Carrot
1 handful of green beans
1 Cl garlic


Fish Curry
Fry Onions in the Ghee until they are just starting to brown then add the garlic, ginger and chilli flakes and cook for a minute or two more.
Add the spice mix to the pan and fry until they become fragrant.
Put the fried onion mix into a food processor and add the tomato, coconut milk and tamarind and blend into a paste.
Cook the paste in a pan until the tomato is cooked out (you'll be able to taste when the tomato is cooked, about 5 minutes).
Add the fish and simmer until the fish is cooked.

Spicy Vegetables
Lightly steam the carrot and beans.
Heat the ghee and add the cumin and mustard seeds.
Cook until they "pop"
Add the vegetables and garlic and lightly fry.

Serve with rice.

Wednesday, June 13, 2012

Optus v NRL: Copyright's Dark Clouds

The Full Bench of the Federal Court recently handed down its decision in the ongoing Optus TV Now case (National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59). The Full Bench overturned the findings of Rares, J in the Federal Court and their conclusions in this appeal will have serious implications for cloud computing in Australia.

In this post, I will only be examining one of the issues that were examined by the court - the issue of who "makes" a recording.

In Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34, Rares, J found that the subscriber to the TV Now Service was the principal who "made" the recording. This is important because it releases Optus from liability for primary infringement and brings the subscriber under the protections of s111 of the Copyright Act (1968) which allows the "Recording [of] broadcasts for replaying at more convenient time".

According to Rares,J at [63]:
"the user of the TV Now service makes each of the films in the four formats when he or she clicks on the “record” button on the TV Now electronic program guide. This is because the user is solely responsible for the creation of those films. He or she decides whether or not to make the films and only he or she has the means of being able to view them [...] The service that TV Now offers the user is substantively no different from a VCR or DVR."
At [65]:
"[...] The legislative materials do not support the rightholders’ argument that, in effect, the user could only utilise technology or equipment with which he or she had some greater connection than the “record” button on the TV Now electronic program guide"
Rares, J approached the TV Now services as an analogue for already existent non-infringing technologies and recognised that the exception in s111 was to allow for technological advances, arguing at [77] that: 
"The value of the exception created by the Parliament, that is designed to give greater flexibility to individuals so as to take advantage of technological advances, would be seriously eroded if a service provider, who has structured a service as carefully as TV Now, had to lead evidence about each user’s individual purpose on each occasion of use"
These arguments were rejected by the Full Bench and their findings, if brought to their logical conclusion, would erode the usefulness of s111 to encourage technological advances.

At [58] the Full Bench placed the emphasis on the producing of the "physical thing" (ie. the recording), rather than the actions that caused the "thing" to be made.  This, by definition placed greater emphasis on the service provider rather than the subscriber as a "maker", rejecting Rares,J's argument that the user did not need a "...greater connection than the record button..." (Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2)[2012] FCA 34 at [65].)

The Full Bench stated at [59]:
"We merely note here that a subscriber’s clicking on a button labelled “record” may trigger a sequence of actions which result in copies of a selected programme being made, but it does not necessarily follow that the subscriber alone makes that copy."
Furthermore, the Full Bench rejected the analogy with already existent technologies stating that the "TV Now" system performs the functions of the Optus-subscriber relationship (albeit automated), not just the recording function, and stated at [64] that:
"is not apparent to us why a person who designs and operates a wholly automated copying system ought as of course not be treated as a “maker” of an infringing copy where the system itself is configured designedly so as to respond to a third party command to make that copy"
If this argument is brought to its logical conclusion, it would be extremely difficult for a cloud service provider with which an individual had a contractual relationship to allow their service to be used by that individual to make a recoding of copyrighted material. If they did, the service provider is likely to be the "maker" as it was in this case.

This argument pushes many different automated subscriber cloud-based services outside of the s111 exception. This ultimately erodes the utility of the exception in s111 and ultimately ties it to physical devices over which a user has possession and control and excludes any cloud-based subscription service which enables a user to use that cloud service to make a recording of copyrighted material.

The emergence of cloud-based services that allow access to recorded digital content, such as TiVo (EDIT: although this is not strictly a cloud based service, the problem comes from the mediation of commands by TIVO from the user to the device [thanks to @neatest for pointing this out]), are now under considerable threat from copyright holders and the danger is that investment in these innovative technologies will be stalled in Australia.

As has been pointed out repeatedly, hindering access to content is a major driver of copyright infringement. However, rightsholders have been extremely reluctant to engage with technology to enable that access, preferring to hinder technological advancement by litigation (and where that fails, legislation).

Technology companies have become extremely frustrated with the content industries, stating that they may as well be "talking to a brick wall". Content industries themselves seem to be content to rely on ever more draconian copyright laws to protect their ailing business models.

While unfilled consumer demand remains and consumer behaviour continues to change in response to technology, infringement will continue. Parliament must recognise that the law must adapt to these changes in consumer behaviour and to some degree accommodate those changes (while still protecting the interests of copyright holders). As Rares, J pointed out in his FCA opinion at [74], s111 was constructed to do exactly that. 

However, the interpretation of s111 by the Full Bench has eroded its usefulness and their construction of the section is backwards-looking, legalising old technologies while ignoring the new. Unless this construction is re-examined and widened in the inevitable appeal to the High Court, parliament must expand s111 to reflect the realities of modern consumer behaviour. If it does not, investment in new legal technologies that advantage both technology and rightsholder companies will stall. The inevitable result is more infringement and that benefits no-one.

Monday, June 11, 2012

Observations from the US: The economy and partisan politics

In his recent speech to the American Chamber of Commerce (SA), Reserve Bank of Australia governor Glenn Stevens outlined Australia's exceptional economic performance in the face of global uncertainty. Stevens urged Australians to see the glass as half full even though many Australians have been determined to see that the Australian economy is in crisis - a perception that is helped by the hysterical campaigning of the opposition parroted by a captured Australian media.

"[...]the nature of public discussion is unrelentingly gloomy, and this has intensified over the past six months. Even before the recent turn of events in Europe and their effects on global markets, we were grimly determined to see our glass as half empty. Numerous foreign visitors to the Reserve Bank have remarked on the surprising extent of this pessimism. Each time I travel abroad I am struck by the difference between the perceptions held by foreigners about Australia and what I read in the newspapers at home."
I have recently spent six weeks travelling around the United States and this has been my experience as well. I observed a deeply depressed American economy and a highly polarised political climate. There was a general feeling of malaise from locals I spoke to about the current state of the American economy. Many of them knew about Australia's excellent economic performance and were bemused by the pessimism about the Australian economy expressed by Australians.

The middle class in America has been under sustained assault from a succession of policies promulgated from rent-seekers and interest groups through Congress.

According to the Congressional Budget Office:

"[...] over the 1979 to 2007 period, the highest income quintile’s share of market income increased from 50 percent to 60 percent, while the share of market income for every other quintile declined. In fact, the distribution of market income became more unequal almost continuously between 1979 and 2007." 
Any attempt to mitigate the outcomes of these policies has been systematically blocked by the partisanship that has pervaded the American political system.

This, combined with the unemployment rate that has exceeded 8% since February 2009, has gutted the middle classes. This has reduced the spending of the middle-class that is the underpinning of the economy.

One of the locals I spoke to (a small business owner) lamented "there is no middle class in America, just the rich and various classes of poor".

Everyone I spoke to was stunned by Australia's economic figures (particularly the unemployment rate) and even more stunned that Australians were complaining about the economy. However, once I explained the partisanship that had infected our political discourse, many of them recognised the political climate that has led the American economy to its current state.

There is a lesson in this for Australia: the sort of partisanship that is being pursued by the opposition and its pandering to rent-seekers and interest groups has consequences for the wider Australian economy. When even the central bank is warning about its effects on confidence, the opposition should take note and begin to act in the National interest, rather than their own interest in gaining power at any cost.

Australians should see the glass as half full: our economy is doing well, unemployment is very low and inflation and interest rates are also low - if Australians really want a view of how "Hockeynomics" and Abbott-style partisan politics works out: go the the US and observe the future.

Thursday, April 19, 2012

Hockeynomics: Cut medicare, subsidise private health, save money

Shadow Treasurer, Joe Hockey, has attacked the "culture of entitlement" that has supposedly stemmed from Australia's welfare state - citing examples of our Asian neighbours as a yardstick by which to judge effective government spending on welfare.

An excellent analysis of Hockey's argument by Matt Cowgill shows that, in fact, Australia's welfare spend on areas other than health and ageing, is comparable to our Asian neighbours. It also compares strongly to other Western countries, including the US.

Cowgill's conclusion is that the only place in which welfare can effectively be cut is in either Health or Ageing:
"To achieve the sort of cuts that Hockey has flagged, to bring our social spending into line with Korea and other countries in our region, would involve huge cuts to health spending, pensions, aged care and help for people with disabilities."
However, there is no need to go into a depth of analysis to see that this is precisely what the coalition intends to do with its cuts to welfare.

In an interview with Lateline, in answer to a question on the Private Health Insurance Rebate, Hockey outlines a move to the US-style system of health care: heavily subsidised private providers providing the bulk of care, with a minor role for a public safety net. Hockey said (emphasis mine):
"If you reduce or remove the Private Health Insurance Rebate, you are simply pushing more people onto the public hospital system, which means they have an entitlement to universal health care, which means that the entitlement system grows."
Hockey is suggesting that an entitlement to universal health care is a bad thing and it is more effective to dismantle the universal system for a system of government subsidy to the private sector.
Hockey goes on further to say: "some entitlements [the Private Health Insurance Rebate] work to reduce other entitlements."
So, according to Hockey, the use of the Private Health Insurance Rebate - a subsidy to the private sector, will reduce the entitlement to universal health care [ie. Medicare].  The shifting of subsidies to the private sector and the dismantling of Medicare's universality smacks heavily of the current US system. In this system the publicly funded system is only available to certain classes of citizen with many falling between the cracks of subsidised private health insurance and the public scheme.

So how does this system compare for cost savings? According to the OECD the US health system costs 7.2% GDP compared to the Australian system which costs 5.7%. In terms of life expectancy, the US ranks 38th in the world, compared to Australia's rank of 6th. There appears to be little gained in the way of cost savings or better health outcomes.

Hockey has given us a glimpse of what a Coalition government would do to fund it's $70 billion in promises - Medicare's universality is to be dismantled, and not for cost but for an ideological antipathy to Medicare that has festered in the Coalition since Malcom Fraser first opposed it.

Friday, March 23, 2012

Billionaires and Battlers

Labor back bencher, Kelvin Thompson, has recently become embroiled in the latest round of Australia's supposed "class war" by daring to suggest that the $50 million taxpayer funding of Australia's F1 Grand Prix might better be better spent on hospitals than funding the lavish lifestyle of Bernie Eccelstone's daughter.

The response from Eccelstone was typical of the recent responses of billionaires to criticism - that democratically elected representatives should resign for daring to criticise those of the moneyed elite. Similar to Clive Palmer's dummy spit to Wayne Swan's article in The Monthly, Ecclestone became indignant and rather than address the criticism, engaged in ad hominem attacks as if somehow the mere fact that he was rich was a shield to any sort of criticism.

Palmer and Eccelstone have attacked their critics variously as "communists" and "destroying the wealth of this country and robbing our children of their opportunities". They have both forgotten that it is the stability of the democratic civil society that has enabled their wealth including, in Palmer's case, the ability to exploit publicly owned assets. Yet the billionaire's view is that they are entitled to their position, and their position is immune to criticism. Those that criticise them, regardless of the fact that they may be democratically elected, "should be fired".

These indignant reactions to criticism are typical of the 1% - they do not see themselves as participants in a society that goes deeper than mere tax-deductable expressions of philanthropy. They see themselves as entitled to a special place in the operation of that society, free from its responsibilities - an unfettered plutocracy, geared to exploit.

We have seen the results of when the 1% are unfettered, first in the 1980's when Reagan removed lending regulations on savings and loans banks that eventually resulted in a financial crisis, and secondly in the 2000's when Bush similarly removed restrictions on banks that resulted once again in financial crisis. In both instances, the 1% were happy to use the removal of regulation to exploit those that were most at risk in society to the detriment of all, particularly the wealth generating middle-class which is now being squeezed out of existence by a rampant 1%.

The disproportionate intrusion of the billionaires to undermine the civil society by the mere size of their wealth is an expression of a sense of arrogant entitlement from those who do not think that a £1 million Mexican crystal bathtub is a vulgar extravagance. A sense of entitlement that was built out of the policies of Reagan and Thatcher in the 1980's.

Margaret Thatcher's declaration in the 1980's that "there is no such thing as society" became the rallying cry of neo-conservatives around the world. Neo-conservative governments began to remove the progressive regulation and taxation systems that had limited the excesses of the rich under the theory that the civil society was unnecessary and that the self-interest of individuals would be sufficient.

Ironically, these conservatives decried the entitlement culture and assumed that the emphasis on the individual would necessarily lead to a "trickle down" of wealth to those less fortunate.

Thatcher herself recognised the entitlement culture, stating: "People have got the entitlements too much in mind, without the obligations, because there is no such thing as an entitlement unless someone has first met an obligation"

However, both Thatcher and Reagan saw those obligations (including the tax burden) as rightly falling upon the poor and middle classes and not similarly upon the rich. The view was that by the very fact that the rich were wealthy, they had fulfilled any obligation to society. This position unravelled the social contract and led to the excesses that caused the financial crises. Far from these crises causing a re-evaluation of this position, Thatcher, Reagan and later Bush continued with their policies further squeezing the middle classes. This has led to an entitlement culture growing amongst the rich - that regardless of the damage caused by their exploitation, government should be there to pick up the pieces at taxpayers expense.

In the past, this sort of sense of entitlement from the rich was met with derision from both the working and middle classes because it was seen for what it was - a desire to exploit society for reasons of self-interest. The institutions of the civil society placed proportionate obligations on everyone.

However, the structures of the civil society have been eroded by successive neo-conservative governments, which has created a society built on exploitation and an indignant sense of entitlement.

The removal of these institutions by conservative governments has led to  the "trickle down" of the exploitative sense of the entitlement to the middle class such that the billionaire's dilemma can be related to by those who are less well off. Accusations of "class warfare" resonate with the middle class, even though the warfare is actually being perpetuated upon them from above.

In Australia, this sense of entitlement has been generated through the explosion in middle class welfare under the Howard government. Just as the 1% believe that they are entitled to be unfettered by responsibilities to society, the middle class believe they are entitled to subsidy-fueled mortgages, private health rebates, subsidised private schools and the like, regardless of the exploitative effect on civil society. In fact, when governments have tried to make these "entitlements" progressive, it has been met with howls of "class warfare".

We have become too relaxed and comfortable, demanding our share of the trough rather than accepting our responsibility to engage with our obligations to society. We instead have fallen to the cheap popularism of slogan inspired "comfort".

This is why the accusation of class warfare has such resonance. In the same way that the billionaires see criticism of their extravagant unsustainable lifestyles as unfair, the middle classes see criticism of their entitlement to an unsustainable subsidy as equally unfair.

The exploitation of the unravelling of civil society is most pronounced by the 1%, who lobby for more changes that entrench their influence and power, but it can also be seen by the subsidy demanding "Howard battlers" who parrot the demands of the 1% even as their own standards of living are eroded.

This exploitative culture has thoroughly distorted the economy, such that everyone looks to Government to provide the conditions by which they can exploit society - rather than to provide conditions under which society thrives. The rampant individualism set in motion in the Thatcher and Regan eras has engendered the exploitation culture - a culture that led us to the global financial crisis and a culture that has created a crisis for the civil society.

Wednesday, March 21, 2012

Whooping Cough is dangerous, so is misinformation

Earlier this year I was diagnosed with whooping cough. Like many people I'd had the vaccination, but my immunity had run out (it is recommended that adults get a booster).

It was one of the most unpleasant sicknesses I have ever experienced. Six weeks of a horrible hacking cough, so bad that I couldn't breathe except for the "whoop" at the end of the fit. I was told by my doctor that it is not unusual to break ribs during these coughing fits - something that I was glad I didn't do, but the pain in my sides was bad enough.

I could not imagine a child going through that. It was bad enough as an adult. Adults generally don't get it as bad as children, adults rarely die of it but children do. Immunisations save lives.

So today I'm sitting at home with a cold - with a similar hacking cough which is a gift from my bout of pertussis -  and I'm catching up on the news and the ABC is a story about whooping cough. It was enough to start a coughing fit.

The story quotes Meryl Doorey from the notorious and misleadingly named "Australian Vaccination Network". The AVN is a pseudo-science based anti-vaccination organisation whose ideas have been discredited by actual real science, yet the ABC sees fit to go to them for an opinion.

Does this mean that the ABC will go to Birthers, Truthers, and Reptillians for their particular alternative nutjob views in the cause of "balance"?

Immunisations save lives and it is extremely irresponsible to give a platform to someone who not only is discredited, but preaches dangerous pseudo-science that can have disastrous consequences.

Tuesday, February 21, 2012

Optus v NRL: Rightsholders vs Technology...again.

The Optus v NRL decision has thrown rightsholders into their usual frenzy of lobbying to protect their revenues from innovation. In summary the decision allows sports fans to use Optus' TVNow cloud services to stream Free to Air TV that they have recorded (often only time-shifting by a few minutes) through the time-shifting exception in s111(1) and s111(2) of the Copyright Act 1968.

As Rares,J found at [74] (emphasis mine):

"The purpose of the exception in s 111(1) and (2) was to accommodate, to some degree, the law to the realities of modern life. Copying for private and domestic use is so much a commonplace that it is not difficult to infer that a user who made a film, by clicking “record”, was doing so for such a use. Indeed, the rightholders did not suggest how anyone, for example, watching a broadcast or film of a football game or television program, on his or her mobile device or PC would be doing so for some reason other than personal pleasure or interest."

Of course, this finding has bought about the usual howls of protest from rightsholders and the attendant claims that the decision will be the end of sport as we know it - despite decisions in other jurisdictions (cited with favour in Optus v NRL) finding similar services to be non-infringing and their content industry continuing to be profitable.

The sports broadcasters seem to have found a sympathetic ear in the form of the sports minister Senator Mark Arbib. Concerningly Senator Arbib has not only used the  time-worn "think of the children" argument but has also intimated that "there were complex issues to consider before legislating, to ensure any laws were not overtaken by fresh technological developments." (emphasis mine)
Senator Arbib appears to be arguing that any law should ensure that any future technological innovation ought to be stunted by copyright law.

This is the typical position taken by a government that sees copyright as essentially an "industry problem" rather than a problem in the content market. The government's position is evidenced by the "secret" copyright meetings between ISPs and rightsholders to the exclusion of consumer interests and the government's apparent preparedness to acquiesce to international treaties that favour the interests of the US content industry.

Unfortunately the government continues to misunderstand the copyright infringement "problem" as an industry-related problem rather than one caused by an inefficient and over-regulated market which has limited consumers' access to reasonably priced legal content. Consumers are willing to pay for access to legal content and the ABC's iView service is a case-in-point recently capturing over 30% of the sources for downloading/streaming content.

Until the copyright infringement "problem" is re-cast as a problem with the market, rightsholders will continue their cat and mouse game with technological innovation and governments will be tempted to pass knee-jerk legislation to ban it.

As Rares,J pointed out, the law as it stands was passed to "accommodate [...] the law to the realities of modern life". It is these realities that have created the incentive for the market to innovate to enable content to be time and device shifted.

It is dangerous for governments to try to pre-empt market innovation by passing laws to further regulate an already over-regulated and highly inefficient market. In this case, it is particularly dangerous as the change to the law alluded to by Senator Arbib will attempt to curtail consumer expectations that are already widespread in the market - expectations that were previously codified in the s111 exemptions.

The result will be inevitable - just as P2P filesharing has become a statement of civil disobedience amongst certain internet communities - technological innovation to make time and format shifting available to the market will continue to expand regardless of the law. If the content industries refuse to harness the technology and give in to the demands of the market, it is not up to the government to prop them up with regressive regulation.

Sunday, January 22, 2012 2012 presentation: The harbour is no longer safe: AFACT v iiNet

This presentation examines the AFACT v iiNet cases. The presentation will draw on some of the ideas that I have written about in these previous posts:
I also provide some analysis of several of the proposed solutions in the AFACT case and what their potential impact could be on end users.

This talk was presented at the 2012 in Ballarat.