[LINK] iinet wins!!

[Frank O'Connor]

At 2:21 PM +1100 on 7/2/10 David wrote:
>On 7/02/2010 2:02 PM, Jan Whitaker wrote:
>>  It's nasty no matter which way anyone jumps on this one.
>Would the least nasty way to jump be to conclude that the problem is
>with the law? As it stands, is copyright realistically enforceable?

My take on the matter is that both sides of the copyright debate (the 
pirates and the copyright holders), and government, have all been 
instrumental in creating the problem.

The copyright holders are hardly ones to go to governments and the 
public 'with clean hands' so to speak because for decades they have:

1. Lobbied for and received extended periods of copyright (from the 
original 25 years to 75 years beyond the death of the creator of the 
copyright) across multiple jurisdictions, sought to downplay 'fair 
use' and user rights, sought to profit to the extreme on new mediums 
for copyright that users may have bought on old mediums and have 
lied, cheated and stolen from the original copyright owners like you 
wouldn't believe. (The vast majority of copyright cases are the 
original copyright holder suing the publisher, beneficial owner or 
whatever)

2. Had a stone age attitude to any new technology (vinyl record, 
radio, tape, video tape, CD, VCD, DVD, BR etc etc) that can act as a 
content recording and distribution medium, and attempt to actually 
shut down these new mediums or otherwise control them until they can 
make the necessary change to their business model ... after which 
they promote them like crazy. The internet is simply a new medium 
.... but they don't see that yet as their physical product retail-end 
business model simply can't handle it. (Although some network 
distribution business models ... e.g. iTunes ... are starting to 
prove that it can be quite profitable.)

The sad thing is that the copyright holders are way behind what their 
major consumers (15-25 year olds) simply regard as the normal way of 
doing things ... they cater to grumpy old farts like myself, but not 
to the young.

3. Lied comprehensively about the effect on their bottom line. On one 
hand we have the financial pages (and the companies themselves in 
shareholder reports) stating to readers and shareholders that music 
and movies are accruing boom and record profits, but every time they 
appear in court (or are the subject of a newspaper story - usually by 
an affiliated newspaper or magazine) they plead impoverishment, point 
at the huge and largely fictitious numbers of people actively 
involved in the industry who will miss out (50,000 in Australia alone 
... Chuckle), and try to mount moral arguments that are hugely at 
variance with their behaviour at Point 1.

They also do not admit that 90% of the piracy would never have 
amounted to a real sale (the pirates simply would not have bought 
it), that some studies show that availability of pirated items also 
results in sales of the better quality industry product that would 
never have occurred without the piracy in the first place (watch a 
grainy low quality sound version of a movie you liked, or listen to a 
low quality mp3 or Ogg version of a complex song you like, to see 
what I mean)

I would really like to see a defendant's lawyer question the 
credibility of the copyright industry on the basis of the porkies 
they tell in the media, in courts and the like which are patently 
untrue if one looks at the information they give markets, 
shareholders, banks and other third parties showing a glowing story. 
(Or even the claims that producers and the industry money men make to 
prospective investors ... which, believe me are so far from the truth 
you'd need the Hubble Telescope to nail them down.)

4. Promoted a broadcast business model (together with their 
associated industries like radio and TV) that seeks to restrict 
material by geography, time and the sheer bloody mindedness of 
programmers and the vagaries of ratings ... so that whether or not 
you get to see episodes of TV series, versions of movies, or albums 
or songs is completely at the mercy of the middleman. I have to say I 
have some sympathy for people who download episodes of TV series or 
documentaries that have been slotted into inconvenient time slots, 
discontinued due to low ratings, not shown due to timidity of the 
local TV industry or whatever.

5. Finally they never admit that other variables may have an effect 
on their bottom line (prevailing economic conditions for example) and 
require adjustments to their price structures and business models to 
increase sales.

The pirates seek to take the high moral ground when questioned about 
their activities, but they fail. What they do is stealing ... both 
technically and morally. That said the bottom line is that the 
average person will always be that if it's free they'll take it ... 
and they find it hard to distinguish between stuff that is broadcast 
(for free) and stuff that is available online.

Governments in many ways have made the present situation ... by their 
regulation and control, by copyright laws overly favourable to the 
copyright holders, by copyright laws that basically have destroyed 
the rights of the people who created the copyright in favour of the 
people of licensed it for distribution, by creating copyright and 
patent laws that actively dissuade innovation and invention (see the 
Men at Work kerfuffle of late .... but many instances of this exist), 
and creating a situation where only the lawyers seem to benefit.

Any rationale examination of copyright and patent law (in Australia 
and overseas) would be viewed by an alien outsider as a sign of 
societies that have given up the will to live, that paradoxically see 
the right to live forever off the past as 'wealth creation', and that 
view innovation and invention as another source of income for those 
who have the money but not the creativity to innovate or invent ... 
because suing the creative for a slice of the cake is much easier 
than working for a living.

Enforceability of copyright probably isn't the issue ... that's a 
simple problem of evidence and process ... the problem is that it is 
being selectively enforced against those who have neither the 
resources or the nouse to defend themselves. The problem is also that 
copyright violation is so widespread ... I'd guess that at least a 
two hundred million people on this planet have at one time or another 
downloaded films or music, played pirated discs or whatever.

But as the judge said in the iiNet case, it's not up to third parties 
to enforce the copyright holders copyright - that is the 
responsibility of the copyright holder. It's also not up to 
governments to enforce the copyright ... because its the taxpayer who 
pays for that ... and surely the business of copyright holding is 
private industry. (Else the government and taxpayers should get a cut 
of the copyright holder's profits, shouldn't they? But I don't see 
the copyright holders offering this through their PR machines.)

Just my 2 cents worth ...