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.

Linux.conf.au 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:

• The harbour is not as safe as it looks; and
• AFACT appeals against reason

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 linux.conf.au in Ballarat.

Obligatory top-10 tech predictions for 2012

I think there's some rule that if you're involved in technology, you have to predict stuff for the next year.

It beats me why, because everyone always seems to get them wrong - maybe the tech press wants a piece the kudos given to economists for making predictions which inevitably turn out to be incorrect.

Anyhow here's mine:

1. Apple will release another iThingy. Hipsters will buy it, regardless of the fact that it's only an incremental release on the previous iThingy. It's times like this I wish I had a Newton - so I could say: "I was using tablets before they were cool. Or even worked properly".
2. Android will continue to inexplicably gain market share, despite still not being able to crack the lucrative hipster market. Apple will continue to sue any android devices that look like they might - and lose. Hipsters will continue to prefer iThingys.
3. Windows Phone will continue to languish mainly because it's about as un-hipster as you can get.
4. Google Plus will continue to grow despite no-one actually admitting to using it. The tech pundits will continue to pronounce its failure until the first mainstream media outlet proclaims it as the new tool of choice for cyberbullying/cyberstalking/farmville and demand "something be done about it". After this, Google Plus will be a real alternative to Facebook.
5. Facebook growth will continue to slow. Pundits will continue to proclaim the death of Facebook. Facebook will still have eleventy billion members.
6. Diaspora will continue to be cool despite no-one actually admitting to using it, or indeed knowing what it is. 
7. Twitter will continue to grow in proportion to those that complain about it.
8. Rightholders will continue to push for more draconian copyright laws. Consumers will get better at using encryption.
9. The State will continue to try to crack down on <insert internet evil here> by proposing even more draconian laws. Citizens will get better at using encryption.
10. 2012 will be the year of the Linux desktop :)

There you have it - 2012, the year that tech will continue doing pretty much what it's done since 2006.

Sceptics and Ideologues

Scientific scepticism (or rational scepticism) is the practice of questioning or doubting the veracity of conclusions that lack empirical evidence or rely on non-reproducable experimentation. For example, the Berkely Earth Project set out to test climatologists research:

"Existing data used to show global warming have met with much criticism. The Berkeley Earth project attempts to resolve current criticism of the former temperature analyses by making available an open record to enable rapid response to further criticism and suggestions. Our results include our best estimate for the global temperature change and our estimates of the uncertainties in the record."

-From Berkeley Earth Project FAQ

The project took a sceptical approach to the earth temperature measurement to test some of the assertions made against climatologists. This independent analysis of both the data used by the IPCC and the arguments put by critics of climate change is an example of a sceptical, scientific method of analysis.

In contrast, an ideologue is a partisan advocate of a particular position or theory - for example [Emphasis mine]:

"Climate change sceptic Ian Plimer's book "How to Get Expelled from School: A Guide to Climate Change for Pupils, Parents and Punters" arms children with 101 questions to challenge their teachers...

The 250-page book includes a list of questions intended to embarrass poorly prepared teachers."

Plimer and his denialist friends are very fond of using the title of "sceptic" because the term lends them some sort of scientific credibility. However, Plimer is not a sceptic, he is an ideologue and his book is pure ideology.

It is little surprise that he got one of Australia's most ideologically-driven leaders to launch it.

Of pizza and the privatisation of public policy

Pizza has been declared a vegetable.

The United States Department of Agriculture's (USDA) proposed food standards were undermined by a congressional spending bill that enabled pizza to be counted as a vegetable. The bill was the result of lobbying by the frozen food industry to ensure that pizza and chips would still be available for school lunches.

In addition the bill will:

• Block the Agriculture Department from limiting starchy vegetables, including corn and peas, to two servings a week. The rule was intended to cut down on french fries, which many schools serve daily.
• Allow USDA to count two tablespoons of tomato paste as a vegetable - which allows pizza to be counted as a serve of vegetables. Federally subsidized lunches must have a certain number of vegetables to be served.

The intervention and lobbying by the fast-food industry to undermine the science-based public policy making of the USDA is yet another example of the increasing trend to privatise public policy making.

Interest groups and lobbyists have disproportionate sway over lawmaking, and in some cases have been able to  get lawmakers to completely abrogate their responsibility to legislate in areas of public policy. So much so that areas that were once the purview of government are now almost purely regulated and enforced by private interests.

This is particularly the case in intellectual property (IP) policy, where industry lobby groups have monopolised the public debate so that they virtually write the legislation for lawmakers to pass.

The recent "Stop Online Piracy" (SOPA) bill is one such example. The bill, if made into law, would give content publishers unprecedented powers to censor and control the publication of online content - making the content  publishers ultimate arbiters of what can be published on the internet. Through laws such as these, Governments have bestowed arbitrary quasi-judicial powers upon powerful interests, removing requirements for due process, natural justice or evidentiary rules - thus shirking their responsibilities to legislate public policy or protect the public interest.

The powers that the bill confers have been likened to the powers that the Chinese government executes over internet content through the "Great Firewall" albeit that the Western version is executed by private, rather than government interests. However, like the Chinese Firewall, the public can not dismantle this policy by excercising their democratic powers - the interests of this private plutocracy are just as dictatorial and totalitatarian as the Chinese Government.

In Australia too, the government has abrogated its responsibility to the public on IP policy by signing up to secretly negotiated "free-trade" treaties such as the Trans-pacific partnership.  The government is also refusing to take a leadership role in regulating IP infringement on the internet - preferring to hand that process over to vested interests in the ISP and content publishing industries rather than legislating in such a way that provides a balance between industry interests and the public interest.

The pervasiveness of the ideology that advocates that public policy is best executed by private interests relegates lawmaking to mere administration and democratic power to tinkering around the edges of issues. 

This abrogation of public policy making by lawmakers has not only had a chilling effect on the rights and freedoms of people, but it has also had serious effects on the world economy (global financial crisis), environment (climate change) and public health and wellbeing (health policy). However, lawmakers are satisfied to leave these important issues up to private interests instead of providing political leadership in the public interest and when a government does try to allow its citizenry to have a say, it is loudly shouted down and decried by those powerful interests to which an appeal to democracy would disadvantage the most.

Various governments have handed over some of the most important areas of public policy to powerful private interests to varying degrees. The economy, the environment, public health and culture have all been privatised to varying extents.

The virtual privatisation of these areas of public policy has collectively given society the global financial crisis by handing the economy to bankers, global warming by acquiescing to industrialist interests, a global obesity epidemic by pandering to the fast-food industry, lack of access to drugs in developing countries by granting broad patents to pharmaceutical companies and limitations on free speech and  human creativity by the over-regulation of IP.

And as we complain about our politicians tinkering around the edges of what was democracy, at least we can drown ourselves in the vacuity of culture that is left to us by the plutocrats and reach for another slice of pizza.

Well, at least it's a vegetable.

The Communications Alliance proposal: a kinder, gentler 3-strikes

The Communications Alliance has released its proposal for dealing with rightsholders' complaints about ISP's customers engaging in alleged copyright infringements over their networks. The basic structure of the proposal is to provide rightsholders and ISPs a clear way of dealing with allegations of copyright infringements. However, in effect it is another variation of a graduated response system, albeit a kinder, gentler three-strikes.
The key features of the model include:

• An independent panel for the assessment of alleged infringement and appeals;
• A system for accrediting rightsholders (including the systems they use for detecting alleged infringements);
• A system of notices with an emphasis on compliance and education (including specified time frames for alleged infringers to respond or amend their behaviour);
• A "reset period" when further infringement has not occurred for a specified timeframe;
• A system of discovery of an alleged infringer's details with a view to private legal enforcement by rightsholders (where compliance has not occurred); and
• A funding model

This proposal broadly reflects the comments of Emmet, J in Roadshow Films Pty Limited v iiNet Limited[2011] FCAFC 23 and the proposal put forward by iiNet [PDF] in the wake of the case.

Considering that the Australian Federation Against Copyright Theft (AFACT) rejected this proposal and have appealed to the High Court (HCA), it is unsurprising that rightsholders have rejected this model, instead continuing to push for models that curtail alleged infringer's right to the presumption of innocence and due process.

In addition to the possibility of a HCA win, rightsholders are also relying on a legislative response from the government who have indicated that they would prefer to hand that process over to vested interests in the ISP and content publishing industries rather than legislating in such a way that provides a balance between industry interests and the public interest.

In the current litigious environment, the Communications Alliance proposal is a relatively balanced approach to the issues that AFACT identified in its complaint while maintaining the interests of ISPs.

Fundamentally, the proposal does not address the issue of the over-regulation of copyright that has created the problem in the first place. As the Communications Alliance itself states:

"Australian consumers' ability to legally access this content in a timely and affordable manner does, however, vary significantly from sector to sector (eg; release of TV programs and movies in Australia can lag months behind US releases). This difficulty, combined with a proliferation of access technologies, such as file-sharing software, has reportedly seen a growth in the frequency of unauthorised access to online content and therefore copyright infringement."

With vested interests controlling government policy on copyright regulation (particularly through international treaties such as the Trans-pacific partnership), it is understandable that rightsholders would refuse to accept that their own actions contribute to online infringement. It is also not surprising that they would continue to push for unbalanced anti-consumer laws to maintain their business models.

To their credit, at least ISPs have made an attempt to balance some of the concerns that have been raised about graduated response systems. However, this proposal has been developed through the prism of ISP interests to avoid being held liable for infringement. The model itself is largely a reflection of the comments of a Federal Court judge ruling on a law that successive governments have largely allowed to be influenced by the interests that are advantaged by those laws.

It is the government's responsibility to legislate to balance the interests of all stakeholders. However, its irresponsible abrogation of its responsibilities to vested interests has resulted in the litigious environment that regularly ignores the interests of the citizens that the government is supposed to represent.

It is time that the market failure that has been created by the over-regulation of intellectual property is re-examined through the prism of efficient and effective regulation. This regulatory analysis ought balance the rights of rightsholders, ISPs and citizens to encourage a dynamic market sparking the innovation that the protection of intellectual property was supposed to achieve in the first place.

The 1% strikes back: QANTAS holds the economy to ransom

Last night, Fair Work Australia (FWA) ruled to terminate all industrial action in the QANTAS dispute. Undoubtedly there will be much written blaming the unions for this industrial chaos, but FWA makes it clear that it was the threatened action by QANTAS that was the deciding factor in terminating the action.

The issue arose because of an application by the Federal Government under s424 of the Fair Work Act (the Act). Section 424(1) states:

424 FWA must suspend or terminate protected industrial action—endangering life etc. Suspension or termination of protected industrial action
1. FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
   
   1. is being engaged in; or
   2. is threatened, impending or probable; if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
   3. to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
   4. to cause significant damage to the Australian economy or an important part of it.”

FWA ruled that the criteria had been met under s424, particularly 424(1)(d) with respect to the aviation, tourism and associated industries.

However, it was not the protected action taken by unions that fulfilled the criteria but the threatened industrial action by QANTAS.

At [10], FWA ruled (emphasis mine):

"It is unlikely that the protected industrial action taken by the three unions, even taken together, is threatening to cause significant damage to the tourism and air transport industries. The response industrial action of which Qantas has given notice, if taken, threatens to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services."

In its ruling on making the order to terminate, rather than suspend protected industrial action, FWA further referenced the uncertainty cause by the employer strike:

At [15] (emphasis mine):

"...Suspension is necessarily temporary - it leaves open the possibility there may be a further lock out with its attendant risks for the relevant part of the economy. That is, a risk the situation we are now dealing with will recur."

In other words QANTAS' threats to the wider economy were the deciding factor in this order, not the union action.

The right to strike has been curtailed to such an extent that it is almost impossible for employees to withdraw their labour to obtain fair working conditions such as the 8-hour day, sick leave, holiday pay, maternity leave and many other conditions that we now take for granted. The justification for this curtailment of labour to take action has always been that industrial action by labour can have seriously detrimental effects on the economy.

The message from this, is that the 1% - the corporations- has unfettered power and is prepared to use it regardless of the detrimental effects to the economy or the country. The almost unfettered right to strike by capital, has held the Australian economy to ransom. FWA has made it clear that it was QANTAS' actions that were the threat, not the union that threatened the economy. The economy cannot be  held to ransom by the industrial action of capital, just as it cannot be held to ransom by labour.

It is time the the Government governs for the 99%  and curtails the rights of capital to strike as they have curtailed the rights of labour.