Fairfax’s Ben Grubb has written an excellent article analysing the likely impacts of the Abbott Government’s metadata legislation, which will require telecommunications companies to store detailed information about the calls and internet use of its customers for two years.
According to Grubb, the legislation is likely to result in a hive of activity from lawyers and other industry players seeking frivolous law suites on behalf of digital rights holders:
…once rights holders know metadata will be stored by internet service providers for two years under the proposed data retention laws, the likelihood of them successfully being able to go after those who have breached their copyright will increase.
…evidence suggests that instead of pursuing the infringers in court, the rights holders [will] intimidate the individuals into making small settlements by way of demand letters and threats of litigation.
Called “speculative invoicing”, this generally involves the rights holder asserting what they think the breach of their copyright is worth — generally several thousand dollars — and saying that they will drop all legal action against the infringer if the user pays the amount listed…
Rod McKemmish, national head of PPB Advisory’s IT forensics practice, said that if rights holders knew the data required to identify pirates was stored longer than they hold it now, they would be “more inclined” to pursue action…
Marque lawyers, representing Dallas Buyers Club, recently said as much in a note to its clients titled “Metadata and the law of unintended consequences”.
“There is nothing in the draft legislation preventing or restricting this use of your data,” it said. “Rest assured that lawyers will be all over it. We will; it’s a treasure trove. Why hasn’t this aspect of the metadata law been discussed? Because the government didn’t think of it. Impressive, aren’t they.”
I won’t go into all of the reasons why data retention is a bad idea – e.g. the plan’s exorbitant costs and civil liberties breaches – since these have been covered previously. What I will say is that none of the underlying reasons behind why Australians download content ‘illegally’ have been addressed by the Government, including: why Australians are charged double (or more) what the rest of the world pays to receive content; and why content is not available here at the same time that it is available elsewhere?
As I keep saying, the key to reducing piracy is to free-up the market for content, so that purchasing it legally is as convenient as illegally downloading from the internet. This requires an end to exclusive deals (like Foxtel’s monopoly on broadcasting Game of Thrones) and the ability to purchase content in a variety of formats from a variety of locations, as well as making it legal to convert files as one sees fit for private use.
Rather than dealing with any of these legitimate concerns, the Abbott Government is instead proceeding with its costly data retention plan and draconian copyright reforms, which will likely see entire parasitic industries emerge concerned with maintaining the status quo, and blocking content from being made available to Australians.
