Last week both Village Roadshow and Foxtel finally launched court actions under the eight months old Copyright Amendment (Online Infringement)Act designed to deal with Internet piracy.

The first thing that needs pointing out is that downloading video and audio content over the Internet is a not a crime as such. It is, however, in breach of the intellectual property rights of the producers and distributors.

The so-called site-blocking law was passed by Parliament in the middle of last year, following a concerted lobbying campaign on behalf of the content rights holders who claimed it was a problem requiring urgent action. So it is curious, to say the least, that it took nearly nine months for anyone to make a move. Youd have thought that if unlawful downloads are such a problem and are costing the rights holders serious money theyd have had their lawyers burning the proverbial midnight oil when the Bill was introduced into Parliament so that they were ready to proceed immediately it came into force.

International experience has found site-blocking is more effective as a PR stunt than a real solution. You close them down and they reappear in no time on another site and/or with another name. Whats more, serious offenders with a modicum of technical knowledge can always find a way to access what they want, lawfully or unlawfully.

Another practical issue is there are more than 400 ISPs in Australia. As I have noted elsewhere, [Data Retention: How not to introduce complex legislation.https://publish.pearlsandirritations.com/blog/?p=5315] no-one knows how many ISPs there are and so, of course, no-one knows who many of them are even or how to contact them. So how do you ensure that pirate sites are effectively blocked if you only target a small proportion of ISPs?

Graham Burke of Village Roadshow told Fairfax mediathe high profile case helped educate people about the threat that piracy imposes on the creative industry to those who didn’t realise or understand the implications. This perhaps belies what could be the ultimate motive for heading to the courts now. That and the embarrassment presumably caused to the government by not rushing to use a law lobbied for with such gusto. Others have reported that pressure was brought to bear by the government to finally see some action. So we are going to inconvenience ISPs and probably see everyones Internet access fees increase as a consequence of the costs of implementing site-blocking, all for a bit of PR?

This is purely conjecture, but you have to also wonder if these court cases arent designed to create a legal precedent in Australia that could be used in other jurisdictions where piracy is a serious problem.

Its not just the site-blocking idea that is problematic. Last year the government ordered the rights holders and the ISPs (represented by the Communications Alliance) to develop a process for sending out warning letters to alleged offenders. A code was developed and lodged with the Australian Communications and Media Authority.

Coinciding with the launch of the site-blocking actions last week came news that the code has been abandoned because the parties couldnt agree on how to fund the operations of the scheme. If the rights holders were serious and unlawful downloading was really costing them big bucks in Australia theyd surely foot the bill for the so-called three strikes warning notice scheme? Or could it be that they just don’t think it will work? In which case, why did they spend so much time working on the code? More PR?

Actually, there is scant evidence that these notice schemes are effective and they are somewhat expensive to administer. New Zealand has had one for some years but it is apparently little used. Understandably, then, why would either party want to bear the costs of running something that isnt going to achieve much?

A recently released report from the International Intellectual PropertyAlliance showed that Australia hasn’t been on their global watch list of worst offenders since the late nineties. Internationally we are not seen as a major part of the copyright infringement problem.

The best way to reduce unlawful downloading is to make content available and easily accessible at reasonable prices comparable with similar markets overseas. This view is supported by Prime Minister Turnbull who, according to ZDNet, said last year thatRights holders’ most powerful tool to combat online copyright infringement is making content accessible, timely, and affordable to consumers.

Australians have been price-gouged for decades through geoblocking. Countless Australians have come back from the United States with much cheaper DVDs only to find that they wouldnt work on top-line DVD players (often produced by companies that are also content rights owners). Anyone who legally downloads music will tell you it is much more expensive here than if it were purchased via the same delivery platforms in America.

It would be in the best interests of content creators, perhaps as opposed to local content distributors, if we all accepted that the main reason why most people unlawfully download is that they cant get what they want through legitimate channels. There is ample research evidence that people are willing to pay if they can get the content theyre after. Some surveys have shown that the people who pirate are also among the most active legal downloaders.

Netflix has enjoyed considerable success since entering our market last year, and two local SVOD platforms Presto and Stan are both signing up reasonable numbers of subscribers. This tells you that there is pent up demand for the very content that, otherwise, is unsurprisingly subject to piracy.

Well see how these new court cases go, but it is worth noting the very recent failure of the Dallas Buyers Club case, where the distributors of this film sought to identify and force downloaders to pay a retrospective fee for use plus damages.

Internet Australia is committed to effective protection of intellectual property rights, as an important incentive to innovate and create. However we are opposed to the site-blocking law and have argued that the government should conduct a formal review of its effectiveness two years after its enactment, in 2017, if not sooner.

Internet Australia maintains it is time to accept the pointlessness of current strategies to deal with unlawful downloading of video and audio content.And, just as airlines are not held responsible for the knock-off DVDs their passengers bring home from their holidays, we dont believe that making ISPs liable by using the Internet to block content is appropriate.

Laurie Patton is CEO of Internet Australia, the NFP peak body representing Internet users. As a former television producer he is personally committed to the protection of intellectual property rights through effective methods.