Hyperbole Alert! EFF and Cory Doctorow on Australia’s Very Effective Site Blocking Regime: What Are They So Afraid Of?

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When you see a blog with the title SOPA.au, you know the BS machine is getting cranked up over at the Electronic Frontier Foundation (EFF). The EFF and Cory Doctorow seem to be particularly frantic that Australia’s regime for blocking offshore pirate websites is not only working well but is being strengthened. Doctorow has reached into his hyperbole bag to pull out epithets to try to discredit a regime that is working very well for Australians, calling it “the world’s most extreme” and describing it as a “failed censorship system”. Doctorow claims that;

the entertainment companies insisted that the censorship system in the 2015 law would drive people away from infringement and into legit markets. Three years later, they’ve admitted failure… (and) are now calling for much more censorship in a new copyright bill”. 

In fact the best description would be one of the world’s most effective piracy control regimes, one that enjoys broad bipartisan support in the notoriously fractious Australian Parliament, and one that is being tweaked to improve its already impressive performance. Research conducted by the Australian government on consumer attitudes toward online copyright infringement conducted in March 2018 concluded that

there is a greater proportion of consumers that are 100% lawful in 2018 compared to previous years” and “legal streaming services are increasingly being used by digital content consumers and (are) having a positive impact on the reduction of, or need for, unlawful consumption.”

This hardly sounds like a failed regime. Indeed, as I noted in an earlier blog on this topic, since the first court-approved blocks were instituted in 2016, a total of eight cases have been brought to the courts, resulting in orders blocking 85 online locations and 483 domains. This has resulted in a 53% reduction in visits to the blocked sites and a 25% reduction in visits by Australian users to pirate sites overall. The system has become “routinized” with ISPs no longer contesting the orders. Costs have been established at $50 (AUD) per site blocked.

Another excerpt from the government’s survey of consumer attitudes is worth quoting;

It is interesting to look at the impact of blocking unlawful sites and consumers’ attitudes and actions when encountering a blocked site. When asked what they would do if they encountered a blocked site the majority of respondents (57%) said they would ‘give up’ or ‘seek alternative lawful access’ (34%) but 7% of respondents said they would try to bypass the blocked website. When those that had encountered a blocked website were asked what actions they took, 46% said that they gave up, 19% sought alternative but lawful access and 15% sought free but unlawful access.

So it’s working well, but the system is not perfect. There are still loopholes. New legislation that has already passed the House of Representatives with bipartisan support (the draft that is causing Doctorow to froth at the mouth) will do several important things; it will extend the regime to sites which have the “primary effect” of infringing or facilitating the infringement of copyright (in addition to the current “primary purpose”); it will extend the site blocking regime to online search engine providers; and it will clarify that the Federal Court may make new blocking orders which follow copyright infringing activity where operators of an overseas online location attempt to avoid the application of an injunction by creating new pathways to online locations (i.e. dealing with the “whack-a-mole” phenomenon).

Doctorow manages to mischaracterize the “primary effect” language by claiming that;

“This is the norm that the entertainment industry is pushing for all over the world: a service’s “primary effect” is infringing if there is a significant amount of infringement taking place on it, even if “a significant amount” is only a small percentage of the overall activity.”

The last time that I looked up the meaning of the word “primary” it meant “of chief importance, principal”. Synonyms are “main, chief, key, prime, central, principal, foremost, first, first-line, most important, predominant, paramount”. Now that sounds to me as if a website whose predominant or paramount or principal effect is piracy will be captured by the new law, (even though ostensibly it may be able to argue that it also has a subordinate legal purpose) but it certainly doesn’t appear that Australia will be targeting websites where pirate activity is only a “small percentage of the overall activity” as claimed by Doctorow. More hyperbole.

There are also outright errors and misstatements of fact, almost too many to deal with in one blog. With respect to copyright term extension, Doctorow claims that:

“Australia was recently pressured by the USA into extending its copyright term from the life of the author plus 50 years to “life plus 70,” meaning that works that are legal to share in the EU (where it’s still life plus 50) might be illegal to share in Australia.”

Well Australia extended its copyright term from life plus 50 to life plus 70 in 2006. Maybe a dozen years ago qualifies as “recently” if you take the long term view of history, but it is not very recent. But the whole argument falls over because the term in the EU is life plus 70. The 2006 amendments in Australia brought the Australian term into line with that of the EU, not at variance with it. More fake news.

Other statements he makes are equally wrong or misleading. For example, Doctorow states that the new legislation will allow rights-holders “to order blocks for sites, addresses and domains that provide access to blocked sites, without going back to court”, making it appear as if rights-holders have a carte blanche to do whatever they want. But he neglects to mention that this will require the agreement of ISPs or search engines in writing, an important check. He states that; “the operators of the sites that are blocked are also not represented in the process when the blocking orders are drafted. The rules don’t require that …the owners of sites facing a block be notified of upcoming proceedings”. This is just plain wrong. The legislation mandates that owners of targeted sites be informed about the action and have the opportunity to join the case and argue their side of the story.

Doctorow claims that the only reason that Australians pirate content is because of slow release dates and lack of legitimate content in the Australian market. This is total nonsense. Not only has there been an explosion of digital offerings in the Australian market (more than 9 subscription channels and over 20 ad-supported content offerings), but over 50% of the 100 top performing Australian box office films are released in Australia before the US release date. More false information.

The inflammatory language (the content industries are accused of being “copyright trolls”, of “censoring content” and of “blackmailing” Australians) and the supposed doomsday outcomes (“Australia is a prototype of how internet policy can go terribly, horribly wrong, and how the people who drive disastrous policies propose even worse ones when their catastrophes unfold”) only add to the desperation all too evident in Doctorow’s blog.

Australia is among the more than forty countries that have implemented mechanisms to control access to offshore pirate sites. It is one of the most effective and has set an example of a site blocking regime that works for ISPs and the content industries, where the judiciary, legislators and the public have accepted its working and its results. Australia’s regime has been proved to have the desired effect of redirecting consumers from offshore pirate sites that do nothing for the Australian economy to sites that support creation and distribution jobs.

Do Doctorow and the EFF really care about Australia? I doubt it. However, the effectiveness of Australia’s pirate site blocking regime has exposed their greatest fear. It works! And if it works in Australia, it can work elsewhere. That is why they are trying to kill it with hyperbole and outright fabrications.

© Hugh Stephens 2018. All Rights Reserved.

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